execution
VIKRAM BALU
(Querist) 04 August 2009
This query is : Resolved
A property was mortgaged in a Bank.
The same property was attached in an execution proceeding of a third party based on a money decree.
I filed a claim petition under order 21 Rule 58 of C.P.C. seeking an order that the bank mortgage is prior to the attachment and that any sale must be subject to the mortgage of the bank - to be mentioned in the sale proceedings.
I filed a mortgage suit and got final decree simultaniously the property was sold subject to mortgage in third party EP.
The Sale proceeds deposited is Rs. 20 Lakh
Bank Mortgage decree amount Rs.10 Lakh.
Third party Decree amount Rs.3 lakh
I filed an Execution petition in the trial court with prayer to attach the amount of the JD for realization of decree amount.
The execution petition was returned with order of judge himself that
"The mortgaged property has been sold subject to mortgage by another court. The petitioner is not liable to attach the sale proceeds. The petitioner is at liberty to file Fresh EP to sell the mortgage properties."
I want advice as to whether I am entitled to the sale proceeds. If so by what provision or relevant citation.
Y V Vishweshwar Rao
(Expert) 04 August 2009
I feel that you can try for attachment Orders under Order 21 Rule 52 CPC - to attach the amount in the Custody of Court or Public Officer
VIKRAM BALU
(Querist) 10 August 2009
Sir,
I had filed the Execution Petition seeking attachment of the amount under order 21 rule 52 CPC but it was returned.
