Attachment of mortgaged property
rajan chopra
(Querist) 18 November 2015
This query is : Resolved
Sir in a civil suit for recovery filed by me can I file an application u/o 38 rule 5 C.P.C for attachment of property of defendant before judgement which is already mortgaged in a Bank by defendant ?
c.p.s. ramachary
(Expert) 19 November 2015
The property was mortgaged to you. The word 'Mortgage' is not English word. It is Latin word. Mort means dead; gage means pledge. It is a dead pledge. No one can deal with dead pledge unless the the entire debt (the mortgage debt) is paid in full to the satisfaction of the mortgagee (yourselves). Hence seeking for attachment of mortgaged property is meaningless and wasteful exercise.
Rajendra K Goyal
(Expert) 19 November 2015
Property is already mortgaged, try to search another property, if any, of the person.
Anupam Lahiri
(Expert) 19 November 2015
What is the use of attachment of a mortgaged property? Your purpose in the attachment process is to secure the compliance with the outcome of court order.
In mortgage, the property interest in vested in the bank. There is no point in securing attachment of such a property.
Better explore the possibility of attaching some other property free from any encumbrance.
K.S.Srinivas
(Expert) 20 November 2015
Not possible and it is invalid.
