Property subject matter of prior mortgage can attach and sale in execution.

 Citatiin

2012 (2) MWN (Civil) 636 (Mad)

 IN THE HIGH COURT OF MADRAS

G. Rajasuria, J.

C.R.P.(NPD) No.3632 of 2010 & M.P. No.1 of 2012.June 15, 2012

R. Venkatachalam

 

Vs.

 

P.K. Ramasamy; A. Natarajan     ...Respondent

 

CODE OF CIVIL PROCEDURE 1908 (5 of 1908), Order 21, Rules 90 & Section 73-Court auction sale Judgment debtor seeking to withdraw remaining amount, in Court deposit, after decree amount was withdrawn by decree holder Objection raised by auction purchaser on grounds that judgment-debtor cannot withdraw amount, since property was purchased by him in auction, subject to mortgage in favour of a third party and that he has been made a party, in Mortgage proceedings initiated by third party Application dismissed Order challenged in Revision Auction purchaser has not sought to set aside sale Sale was effected after making proclamation specifying mortgage As such, sale is subject to mortgage in favour of third party Judgment debtor is entitled to take remaining amount after decree holder has withdrawn his decretal dues Merely because auction purchaser is made party in Mortgage proceedings against mortgaged property, judgment-debtor cannot be prevented from withdrawing amount lying in Executing Court- Right of mortgagee is independent Impugned order holding that judgment debtor is not entitled to withdraw the remaining amount lying in Court deposit, set aside Revision Petition allowed. [Para 9-11]