IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SIXTEENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH AND THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No: 18195 of 2007 BETWEEN: 1 Sk.Farid S/o.Sri Haji Shakik Kasim, Door No. 23-23-11/3, Sivalayam Street, I-Town Area, Visakhapatnam. 2 Afzal Hussain S/o.Sri Haji Shakik Kasim, Door No. 23-23-11/3, Sivalayam Street, I-Town Area, Visakhapatnam. ... PETITIONERS AND 1 Sri Kolluru Venkata Satya Seshagiri Rao S/o.Late Butchi Nookayya residing at 25-8-33, Kurupam Market Main Road, Visakhapatnam. 2 State Bank of India, Main Branch, Visakhapatnam. ...RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue any writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the impugned order of attachment issued in R.P.No.130/2004 in O.A.No.799/2002 dated 31.5.2006 on the file of the Debts Recovery Tribunal, Visakhapatnam, as illegal, arbitrary, improper and consequently set aside the same in so far as the property mentioned at Schedule-A is concerned, and pass such other order or orders. Counsel for the Petitioner: MRS.P.RAJESWARI Counsel for the Respondents: MR. M. NARENDER REDDY SMT. K. LAKSHMI KUMARI The Court made the following: ORDER: (per Hon’ble Sri Justice V. Eswaraiah) Petitioners challenge the order of attachment dated 31.05.2006 in R.P.No.130 of 2004 in O.A.No.799 of 2002 passed by the Debts Recovery Tribunal, Visakhapatnam on the ground that they have purchased schedule A property of the said attached schedule property by virtue of registered sale deed bearing document No.3010/1996 dated 06.11.1996 from the first respondent, who delivered vacant possession of the same in their favour and that they are in peaceful possession and enjoyment of the same. 2. Petitioners submit that their names have also been mutated in the Visakhapatnam Municipal Corporation records and therefore, the attachment of the said property pursuant to the order of the tribunal is illegal and arbitrary as they are the bonafide purchasers. They further submit that they are in continuous possession of the said property from 1996 and the bank – second respondent obtained recovery certificate in collusion with their vendor. The vendor suppressed the fact of mortgage of the said property in favour of the bank and the second respondent bank sanctioned the loan without conducting enquiry about the alienation of the said property in favour of the petitioners. 3. We have perused the records. In fact, the said property was mortgaged in favour of the second respondent bank by creating equitable mortgage by depositing title deeds on 12.11.1986 and when the said loan account became irregular and amount was not paid, the bank was compelled to file mortgage suit in 1989 i.e. even before the petitioners purchased the said property in 1996, on the file of the Senior Civil Judge, Visakhapatnam, which was later transferred to Debts Recovery Tribunal, Bangalore and finally to Debts Recovery Tribunal, Visakhapatnam and numbered as O.A.No.799 of 2002. The Debts Recovery Tribunal, after enquiry allowed the OA and issued recovery certificate dated 30.09.2004. Pursuant to the said certificate only, the second respondent bank initiated proceedings for attachment of the mortgage property, so as to enable it to sell the same by public auction. 4. The petitioners question the attachment proceedings only without questioning the order of the Debts Recovery Tribunal in O.A.No.799 of 2002 dated 30.09.2004. Admittedly, the petitioners purchased the said property subsequent to creating equitable mortgage by their vendor and subsequent to the filing of the mortgage suit by the second respondent bank. Therefore, we are of the opinion that the petitioners’ rights are subject to mortgage, as their vendor has suffered a decree and as the said decree has become final, the petitioners are not entitled to question the order of attachment. 5. Petitioners further submit that there are two other items i.e. B and C schedule properties and if the said properties are proceeded with, the bank would recover sufficient amount. Therefore, a request has been made to direct the bank to proceed with B and C schedule properties. 6. We are unable to accept the said contention as it is for the second respondent bank to choose the manner and method for recovery of the debt amount and the said request is rejected. We, therefore, do not see any merits in the writ petition. The writ petition is accordingly dismissed. There shall be no order as to costs. ______________ V. ESWARAIAH, J _____________________ VILAS V. AFZULPURKAR, J February 16, 2009 DSK