Execution proceedings

S. Fernandes (Querist) 17 September 2014 This query is : Resolved
Dear Sir,

1) I have filed for execution of a money decree.

2) In the EP I have attached immovable Property, under Rule-54 of Order-21.

3) Subsequent to attachment two objectors have filled objections,under Rule-58 of Order-21. Of the two one is a bank, claiming to be mortgagee of the attached property, the other objector is the mortgager.

Question:

Can the Bank during pendency of its own application under Rule-58 of Order-21 before the executing court, take possession of the same property which is attached by the court in the execution proceedings,
under SARFAESI ACT 2002.

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Dr J C Vashista (Expert) 18 September 2014
Once the property is attached by the order of the Executing Court, no other institution/ authority can take possession of the property till the attachment is in vogue, move to the executing court against the action of Bank, if they have taken over possession.

Ramesh (Expert) 18 September 2014
From the information furnished it appears that Bank has taken possession of the property under SARFAESI, which makes it clear that the property in question is already mortgaged with the bank. Your subsequent attachment cannot defeat the Bank's rights as a secured creditor under SARFAESI. The application filed by the bank under rule 58 of order 21 will be allowed on this ground alone. The bank has every right to take possession of a secured property under the provisions of SARFAESI Act.Mere pendency of the said applications before the executing court does not prevent the bank from proceeding under SARFAESI .

M V Gupta (Expert) 18 September 2014
Mostly objection of the Bank will sustain and court may make all the proceedings in the EP subject to the claims of the Bank or if the bank has so prayed it may be allowed to take further steps under the SARFAESI Act.

venkatesh Rao (Expert) 18 September 2014
Dr. Vashista appears to be correct. SARFAESI Act does not in any way abridge the powers of the court. the bank can at the most be an objector having first preference.