IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 WP(C).No. 1645 of 2009(S) ------------------------------------ ORDER DATED 15.12.2008 IN I.A.NO.3462/2007 IN O.P.NO.156/2006 OF THE FAMILY COURT, THIRUVANANTHAPURAM PETITIONER: ------------------ ROSHINI, D/O.AUGUSTIN MARTIN, ZEENA COTTAGE, VETTUTHARA, KADINAMKULAM, CHANNANKARA.P.O, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.ANANDAKUTTAN RESPONDENTS: ----------------------- 1. MANAGER, STATE BANK OF TRAVANCORE, NAGERCOIL MAIN BRANCH – 149, BALAMORE ROAD, NAGERCOIL, REPRESENTED BY ITS BRANCH MANAGER, SRI. RAVI VENKATESH.V.R. 2. AJITH ROSE, S/O. SURESH ROSE, HOUSE NO. 18/1A/28A, HOLLY CROSS NAGAR, NAGERCOIL. 3. JOSE PRAKASH, HOUSE NO. 18/1A/28A, HOLLY CROSS NAGAR, NAGERCOIL. ADV. SRI.R.S.KALKURA FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.1645 OF 2009-S APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF I.A.NO.469/06 EXT.P2 TRUE COPY OF I.A.NO.3462/07 EXT.P3 TRUE COPY OF THE OBJECTION IN I.A.NO.3462/07 EXT.P4 TRUE COPY OF THE ORDER DATED 15.12.2008 / TRUE COPY / P.R.RAMAN & P.S.GOPINATHAN, JJ. ------------------------------------------ W.P.(C) No.1645 of 2009 ------------------------------------------ Dated, this the 4h day of March, 2009 JUDGMENT P.R.Raman, J. This writ petition is filed by one Roshini who has instituted some proceedings against her husband in the Family Court as O.P.No.156 of 2006. That was a petition filed for recovery of gold and money from the husband. During the pendency of the proceedings, properties belonging to the husband were attached. However, there is a prior encumbrance of the property by way of mortgage in favour of the Bank, the first respondent. For realisation of the amount due to the Bank, they initiated proceedings under the Securitsation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('the Securitisation Act' for short) and the properties brought to sale. In the meantime since the Bank came to know of the attachment, they preferred an application I.A.No.3462 of 2007 in O.P.No.156 of 2006 before the Family Court, Thiruvananthapuram to lift the attachment and adjudicate their right. By Ext.P4 order it was held that the Bank is entitled to proceed against the property having an extent of 8 cents belonging to the first respondent in that application, the second respondent herein, as per the W.P.(C) No.1645 of 2009 2 provisions of the Securitisation Act. As the attachment ordered will not stand in the way of the Bank in proceeding against the property, challenging the same, the petitioner has preferred this writ petition. 3. We have heard both sides. 4. The equitable mortgage was created in favour of the first respondent on 28.2.2003, whereas the attachment by the Family Court was much later, i.e. in February, 2006. Therefore, the Bank has got a prior charge over the property. Hence, attachment, if any, can only be subject to the prior encumbrance of the Bank. The court below has only clarified the above legal position. Hence there is no merit in this writ petition. Accordingly we dismiss the same. However, if the Bank proceeds against the property and sells the same, over and above the amount due to the Bank, if there is any balance left, the said amount shall be deposited before the Family Court and disbursal of the same will be subject to further orders that may be passed by the Family Court. Subject to the above, the writ petition is disposed of. P.R.RAMAN, JUDGE P.S.GOPINATHAN, JUDGE vns