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2010 DIGILAW 69 (KER)

Catholic Syrian Bank Ltd. v. P. B. Sunil Kumar

2010-01-21

P.R.RAMACHANDRA MENON

body2010
JUDGMENT : P.R. Ramachandra Menon, J. Whether the amount payable to the 4th respondent under the Toddy Workers' Welfare Fund Act is having any 'priority' over the debt due to the petitioner Bank, in favour of whom, mortgage over the property in question was created much earlier and further when a positive decree was obtained by the Bank, pursuant to which the property was transferred to the name of the secured creditor, is the point for consideration. The issue requires a closer scrutiny in view of the rival submissions made from the part of the learned Government Pleader on one side that, it is squarely covered in favour of the respondents as per the recent decision rendered by a learned Judge of this Court in State of Kerala v. Bank of India 2008 (4) KHC 691 : 2009 (1) KLT 105 : ILR 2008 (4) Ker. 506 white the same is strongly rebutted from the part of the petitioner Bank, placing reliance on the decision rendered by the Apex Court in Union of India and Others v. SICOM Limited and Another 2009 KHC 4022 : 2009 (2) SCC 121 : ILR 2009 (1) Ker. 763 : 2009 (2) KLT SN 23 and several other verdicts on the point. The essential facts required for effective adjudication of this case are such that; the first respondent had availed an overdraft facility from the petitioner Bank, creating equitable mortgage over the property by depositing the title deeds on 15/03/1997. When the first respondent failed to repay, the Bank filed OS 188/1999 for recovery of the due amount, by sale of the mortgaged property as provided under the relevant provisions of the CPC before the Sub Court, Irinjalakuda on 18/06/1999. The suit was decreed in favour of the petitioner/plaintiff Bank on 11/10/2000 as borne by Ext. P1 and the petitioner Bank was allowed to realise the decree amount by sale of the decree scheduled/mortgage property. Accordingly, the Bank filed EP 318/00 and as permitted by the Court, the decree scheduled property over which the mortgage was created, was bid by the Bank in auction, as revealed from Ext. P2 Sale Certificate dated 10/03/2004 issued by the Court. Subsequently, the delivery of possession was also effected in favour of the petitioner Bank on 30th October, 2004 vide Ext. P2 Sale Certificate dated 10/03/2004 issued by the Court. Subsequently, the delivery of possession was also effected in favour of the petitioner Bank on 30th October, 2004 vide Ext. P3; pursuant to which the Bank approached the concerned village officer for effecting mutation, which request was however, not acceded to, stating that there was already an 'attachment' over the property in question, as revealed from Ext. P4 encumbrance certificate issued by the SRO, Mathilakam. Immediately the petitioner rushed to the 3rd respondent by filing Ext. P5 representation, explaining the actual facts and figures and seeking to release the property from attachment. In the course of further steps, the 2nd respondent/Tahsildar conducted an enquiry and reported to the 3rd respondent/District Collector vide Ext. P6, that the attachment was liable to be lifted: which however was not acted upon, keeping the matter in cold storage and this compelled the petitioner Bank to approach this Court by filing the Writ Petition, seeking for appropriate relief's. 2. In the Course of the proceedings before this Court, the requisitioning authority, i.e., Kerala Toddy Workers' Welfare Fund Board at whose instance the attachment was effected, was also impleaded in the party array as the additional 4th respondent. The 2nd respondent/Tahsildar has filed a counter-affidavit seeking to justify the attachment and further proceedings; however without any reference to his own report (Ext. P6); thus raising a diametrically opposite contention. No counter affidavit has been filed by the additional 4th respondent, but for the statement dated 15th June, 2010. The sequence of events and the factual position as narrated by the petitioner in the Writ Petition have not been rebutted by the respondents. As such, the issue is only with regard to the legality of the proceedings being pursued by the respondents under the Kerala Revenue Recovery Act, particularly as to the 'priority', if any, in the matter of realisation of the due amount. 3. The crux of the arguments of the learned Government Pleader and the learned Standing Counsel appearing for the 4th respondent is that, huge amount was due from the first respondent/defaulter towards the Kerala Toddy Worker's Welfare Fund in respect of the year 1998-99, being the licencee who had bid the toddy shops in the 'Kodungallur Range' during this period, which in turn was sought to be recovered invoking the machinery under the Kerala Revenue Recovery Act. It is contended that the said amount is very much a 'public revenue due on land' and is liable to be recovered invoking the relevant provisions under the Kerala Revenue Recovery Act. The additional 4th respondent has got a further contention that the amounts due under the above enactment will get priority in the matter of recovery, being a 'welfare legislation', as the amount of contribution is intended for the benefit and welfare of the workers. Respondents seek to place reliance on the decisions rendered by this Court in 2004 (3) KLT 1083 Kerala Motor Transport Workers Welfare Fund Board v. William Raynold, 2004 KHC 1622 : ILR 2004 (3) Ker. 172, Inspector, Toddy Workers Welfare Fund Board v. Vijayan 2009 (1) KHC 465 : 2009 (1) KLT 410 : ILR 2009 (1) Ker. 429 : 2009 (1) KLJ 386 and in State of Kerala v. Bank of India 1977 KHC 289 : 1977 KLT 826 . 4. The learned counsel for the petitioner Bank submits that the idea and understanding of the respondents as to the 'priority' and the reliance placed on the decisions cited supra are quite wrong and misconceived. The learned counsel anchored his arguments mainly asserting that such 'priority' as contemplated under Section 3 of the Revenue Recovery Act can be there, only if the amount payable constitutes 'arrears of public revenue due on land' or there is any specific stipulation in the concerned statute categorizing the amount due under the said Act as having any priority right, enabling the same to have recovered under the Kerala Revenue Recovery Act. It is also stated that once a decree has been passed and property is transferred from the hands of the defaulter, it is no more open to be attached or sold in public auction even when there is a priority right, submits the learned counsel. 5. The Kerala Revenue Recovery Act of course provides for recovery of the amount due to the Government as 'arrears of public revenue due on land' as well as for recovery of certain other dues to the Government, as dealt with under Section 68. 5. The Kerala Revenue Recovery Act of course provides for recovery of the amount due to the Government as 'arrears of public revenue due on land' as well as for recovery of certain other dues to the Government, as dealt with under Section 68. It is further stipulated under Section 71 of the Act that the Government is vested with sufficient power to declare the Act as applicable to any institution to be notified in the Gazette, so as to enable recovery of the amount due from any person or class of persons to any such specified institution or class or classes of institutions. Section 3 of the Act says that 'public revenue due on land' shall have the 'first charge' and priority over any other debt. The primary question to be considered is, whether the amount payable as contribution under the Kerala Toddy Workers' Welfare Fund Act constitutes "public revenue due on land", to have priority over other debts and as to the scope and applicability of the Kerala Revenue Recovery Act for realisation of the said amount. 6. The terms "arrear of public revenue due on land" and "public revenue due on land" have been separately defined under Section 2(a) and Section 2(j) of Kerala Revenue Recovery Act respectively, which are extracted below: Section 2(a):- "arrear of public revenue due on land" means the whole or any portion of any kist or instalment of such revenue not paid on the day on which it falls due according to the Kist bandy or any engagement or usage; Section 2(j):- "public revenue due on land" means the land revenue charged on the land and includes all other taxes, fees and cesses on land, whether charged on land or not, and all cesses or other dues payable to the Government on account of water used for purposes of irrigation. The scheme of the Kerala Revenue Recovery Act clearly shows that the Act is very much applicable for realisation of amounts even if the amount to be recovered is not a public revenue due on land. But the question is whether, by virtue of the application of the Act for effecting the recovery, will it change the colour and characteristics of the 'debt', making the same automatically a 'public revenue due on land', to have 'priority' under Section 3. But the question is whether, by virtue of the application of the Act for effecting the recovery, will it change the colour and characteristics of the 'debt', making the same automatically a 'public revenue due on land', to have 'priority' under Section 3. The first decision cited by the learned counsel for the petitioner as to evolution of law in this regard is the one rendered by a learned Judge of this Court in Nedungadi Bank Ltd. v. Tahsildar Ottapalam 1977 KHC 289 : 1977 KLT 386 . It was a case involving the relative rights between the Government and the Bank who had secured the debt by way of mortgage and had obtained a mortgage decree, deriving title to the property. After referring to the relevant provisions of law, particularly with reference to Section 2(j) and Section 68 of the Kerala Revenue Recovery Act, it was held by this Court that the Government was not entitled to have priority over a secured debt. It was specifically held in paragraph 14 that the debt due to the State in the said case was a "trade debt" and not a "revenue debt", whereas; the debt due to the Bank was a 'secured debt' and therefore the latter stood on a higher pedestal. 7. In Union of India v. Metherukunju Moosakutty and Others 1980 KHC 404 : AIR 1980 Ker. 182 : 1980 KLN 83, a Division Bench of this Court, after making a comparative analysis and as to the scope of the provisions under the Kerala Revenue Recovery Act and the Central Excise and Salt Act, 1955 observed that the 'excise dues' cannot have priority over the dues to other creditors. The decision rendered by the learned Single Judge in Nedungadi Bank Ltd. v. Tahsildar Ottapalam 1977 KHC 289 : 1977 KLT 826 was also very much referred to, in the above verdict; besides referring to the position of law made clear by the Apex Court and other decisions by this Court as well as by other Courts on different occasions. 8. In 1981, the question whether the contribution payable under the Kerala Toddy Workers' Welfare Fund Act was liable to be recovered, resorting to the remedy under Section 65 of the Kerala Revenue Recovery Act (providing for arrest and detention) had come up for consideration before this Court in Baby v. State of Kerala and Others. 8. In 1981, the question whether the contribution payable under the Kerala Toddy Workers' Welfare Fund Act was liable to be recovered, resorting to the remedy under Section 65 of the Kerala Revenue Recovery Act (providing for arrest and detention) had come up for consideration before this Court in Baby v. State of Kerala and Others. As per the verdict therein (1981 KHC 319 : 1981 KLT 510 : 1981 KLN 262 : 1981 KLT SN 14), a learned Judge of this Court held that the money due under Section 9 of the Welfare Fund Act is not public revenue due on land and Section 3 creating 'prior charge' under Kerala Revenue Recovery Act is not attracted, although the amount is recoverable as in the case of any other land revenue. It was also held that the object of the Kerala Revenue Recovery Act is to recover not only the public revenue due on land, to which Section 3 is attracted, but also other amounts declared to be recoverable under the Act; simultaneously adding that the money due under the Welfare Fund Act is not of that sort and it does not enable the Recovery Officer to claim 'priority' over other creditors. 9. In State of Kerala v. RVS Mani 1995 KHC 355 : 1995 (2) KLT 568 : 1995 (2) KLJ 110 : ILR 1995 (3) Ker. 554, it was held by a Division Bench of this Court, that the attachment of land in the course of realisation of arrears of Sales Tax does not create a 'charge' on the land and the State is not a secured creditor. But subsequently, the KGST Act was amended, by incorporating Section 26B' with effect from 01/04/1999, whereby priority in respect of the sales tax dues was created and established over other debts. This is explained in the subsequent decision rendered by another Division Bench of this Court in Sheri Jacob v. Canara Bank reported in 2004 (3) KLT 1089 : 2004 KHC 1623 : AIR 2005 Ker 50 , whereby it has been held, that by virtue of the clear stipulation under Section 26B of the KGST Act, the statutory 'first charge' will prevail over any charge or right created in favour of a mortgagee or secured creditor. This was reiterated by another Division Bench of this Court in South Indian Bank v. State of Kerala reported in 2006 (1) KLT 65 : 2006 KHC 428 as well. 10. In the year 2006, this Court had occasion to consider whether the provisions under the SARFAESI Act were having any 'over riding effect' on the provisions of the EPF Act providing first charge in respect of the dues under the EPF Act. By virtue of Section 11 of the EPF Act, it has been clearly stipulated that the said provision gives 'priority' to the amounts due under the EPF Act, over other amounts/debts to the Bank and their rights under the SARFAESI Act. But here, the question is whether any such statutory prescription is there under the Kerala Toddy Workers' Welfare Fund Act, creating 'priority' right in respect of the amounts due under the said Act as in the case of the EPF Act or such other similar enactment. The learned counsel for the petitioner asserts, with reference to the relevant provisions including Section 9 of the Kerala Toddy Workers' Welfare Fund Act, that no such priority right has been created under the said Act enabling the amount due to have realised with 'priority', invoking the machinery under the Kerala Revenue Recovery Act, as in the case of recovery of the 'public revenue due on land'. The position in this regard, as to the conspicuous absence of any provision to establish the 'priority' in the case of amount due under the Kerala Toddy Workers' Welfare Fund Act, is not seriously rebutted from the part of the respondents as well. 11. In Abraham Jacob v. Thomas J. Nidhin 2008 (2) KHC 180: 2008 (2) KLT 204 : ILR 2008 (2) Ker. 115 : 2008 (1) KLJ 731, this Court considered the sanctity of the provisions under the Kerala Abkari Act, in conjunction with the stipulations under the Kerala Revenue Recovery Act, to ascertain whether the arrears under the 'Abkari Act' could be treated as 'arrears of land revenue' and for proceeding in the matter of recovery. 115 : 2008 (1) KLJ 731, this Court considered the sanctity of the provisions under the Kerala Abkari Act, in conjunction with the stipulations under the Kerala Revenue Recovery Act, to ascertain whether the arrears under the 'Abkari Act' could be treated as 'arrears of land revenue' and for proceeding in the matter of recovery. After discussing the relevant provisions, it was clearly held by this Court that the arrears under the Abkari Act, though will be treated as arrears of land Revenue for the purpose of recovery, the same however will not constitute or become 'public revenue due on land' as defined under Section 2(i) of the Kerala Revenue Recovery Act and hence will not fall within the purview of Section 3 of the Kerala Revenue Recovery Act, to have preferential 'first charge'. The issue as discussed above, had come up for detailed consideration before a Full Bench of the Madras High Court as borne by the decision rendered in UTI Bank v. Deputy Commissioner of Central Excise and Another, 2007 (1) KHC 435. After exhaustive analysis, it has been held by the said Court that, if only there is a specific provision creating 'first charge', can the amount due have 'priority' over the claim of others. It was further held that, there was no specific provision in the Central Excise Act, 1944 or the Customs Act, 1962 creating 'first charge' and hence that the amounts due under those enactments cannot have a preferential 'first charge' over the claim of secured creditor/Bank. Accordingly, it was held that the charge created in favour of the Bank will prevail over the dues towards the Central Excise Department, in the absence of specific provisions in the Central Excise Act creating such prior charge. 12. The legal position becomes crystal-clear by virtue of the declaration of law by the Apex Court in the recent decision rendered in Union of India and Others v. SICOM Ltd, and Another 2009 KHC 4022 : 2009 (2) SCC 121 : ILR 2009 (1) Ker. 763 : 2009 (2) KLT SN 23. After referring to the relevant provisions under the State Financial Corporations Act, 1951 and such other relevant statutes, it was held by the Apex Court that the rights of the 'Crown' to recover the debt would of course prevail over the right of a 'Subject'. 763 : 2009 (2) KLT SN 23. After referring to the relevant provisions under the State Financial Corporations Act, 1951 and such other relevant statutes, it was held by the Apex Court that the rights of the 'Crown' to recover the debt would of course prevail over the right of a 'Subject'. But the secured debt or a debt which becomes 'first charge' by virtue of Article 371 of the Constitution will prevail over the Unsecured Crown debt. It was also made clear that a debt which is secured or which by reason of the provisions of a statute becomes the 'first charge' over the property having regard to the plain meaning of Article 372 of the Constitution of India must be held to prevail over the Crown debt which is an unsecured one. 13. The decisions cited by the respondents, particularly in Kerala Motor Transport Workers Welfare Fund Board v. William Raynold 2004 KHC 1622 : 2004 (3) KLT 1083 : ILR 2004 (3) Ker. 172, Inspector, Toddy Workers Welfare Fund Board v. Vijayan 2009 (1) KHC 465 : 2009 (1) KLT 410 : ILR 2009 (1) Ker. 429 : 2009 (1) KLJ 386, State of Kerala v. Bank of India 2008 (4) KHC 691 : 2009 (1) KLT 105 : ILR 2008 (4) Ker. 506 and Kaduthuruthy Urban Co-op. Bank Ltd. v. State of Kerala 2007 KHC 3761 : 2007 (3) KLT 957 : 2007 (2) KLJ 369 are to be examined and analyzed in the light of the law declared by the Apex Court as above. In 2004 (3) KLT 1083 : 2004 KHC 1622 : ILR 2004 (3) Ker. 172 the issue involved was, whether the arrears due from the employer under the provisions of the Kerala Motor Transport Workers' Welfare Fund Act, 1985 were 'arrears of public revenue due on land' as defined under Section 2(j) of the Kerala Revenue Recovery Act and it could be recovered, resorting to the provisions of the Kerala Revenue Recovery Act. After referring to Section 10 of the Kerala Motor Transport Workers' Welfare Fund Act, which stipulates the mode of recovery of money due from the employers, it was observed that there was a clear stipulation that such money, to the extent as specified therein, could be recovered in the same manner as an arrear of public revenue due on land. After referring to Section 10 of the Kerala Motor Transport Workers' Welfare Fund Act, which stipulates the mode of recovery of money due from the employers, it was observed that there was a clear stipulation that such money, to the extent as specified therein, could be recovered in the same manner as an arrear of public revenue due on land. Various other provisions such as Sections 65, 68, 71 etc. were also considered by the Division Bench and it was held in paragraph 7 that the Kerala Revenue Recovery Act has been enacted not only to recover the 'arrears of public revenue due on land' but also other amounts declared by any other law for the time in force, recoverable as "arrears of public revenue due on land or land revenue". In other words, the above decision is only an authority to sustain the mode of recovery, invoking the machinery under the Kerala Revenue Recovery Act and nowhere has it been discussed, as to the relative 'priority' of the amount due under the Act over and above the amount, if any, payable to a Bank as a secured debt. As such, the said decision does not promote the case of respondents in any manner. 14. In Kaduthuruthy Urban Co-op. Bank Ltd. v. State of Kerala 2007 KHC 3761 : 2007 (3) KLT 957 : 2007 (2) KLJ 369 a learned Single Judge of this Court, referring to Rule 5(11) of the Kerala Abkari Shops ("Disposal in Auction") Rules, 1974 and also referring to Section 28 of the Kerala Abkari Act, held that the liability to satisfy the dues arising out of a bid is enforceable under Section 28 of the Act, apart from the contractual liability and is entitled to be recovered by putting the Revenue Recovery Act in motion. It was also observed, (referring to the Rule 5(11) of the Rules mentioned above), that any encumbrance created on the assets covered by the solvency certificate will be deemed to be void to the extent the same is due under such contract. The learned counsel appearing for the petitioner submits that there is no such statutory prescription as to the right of transfer or as to the right of 'priority' anywhere in the Kerala Toddy Workers' Welfare Fund Act or the Scheme thereunder. The learned counsel appearing for the petitioner submits that there is no such statutory prescription as to the right of transfer or as to the right of 'priority' anywhere in the Kerala Toddy Workers' Welfare Fund Act or the Scheme thereunder. This being the position, the dictum in 2007 (3) KLT 957 2007 KHC 3761 : 2007 (2) KLJ 369 does not come to the rescue of the respondents, to sustain their stand. 15. It is true, in the decision in Inspector, Toddy Workers' Welfare Fund Board v. Vijaya 2009 (1) KHC 465 : 2009 (1) KLT 410 : ILR 2009 (1) Ker. 429 : 2009 (1) KLJ 386, a Division Bench of this Court considered whether the amount due under the Kerala Toddy Workers' Welfare Fund Act is a public revenue due on land so as to have it recovered invoking the machinery under the Kerala Revenue Recovery Act. After considering the relevant provisions and the decisions rendered at different points of time, it was held that the amount was very much liable to be recovered, invoking the machinery under the Kerala Revenue Recovery Act by virtue of the specific stipulation under Section 9 of the Toddy Workers' Welfare Fund Act, which is in pari materia with Section 10 of the Motor Transport Workers' Welfare Fund Act. Obviously, no issue was there, as to the 'priority' of such debt over the debt to any secured creditor and no reference was made to Section 3 of the Kerala Revenue Recovery Act or such other statutory provision as contained in some other enactments like EPF Act or KGST Act etc., to have such 'priority' or as to the conspicuous absence of enabling provisions creating 'priority' in the Kerala Toddy Workers' Welfare Fund Act. This being the position, the dictum contained in the said decision is not at all applicable to support the case of the respondents. 16. Now comes the decision rendered by a learned Single Judge of this Court in 2009 (1) KLT 105 : 2008 (4) KHC 691 : ILR 2008 (4) Ker. 506, which is cited by the learned Government Pleader to contend that the contribution payable under the Kerala Toddy Workers' Welfare Fund Act has been held as having priority over other debts including a charge on the mortgage property. 17. 506, which is cited by the learned Government Pleader to contend that the contribution payable under the Kerala Toddy Workers' Welfare Fund Act has been held as having priority over other debts including a charge on the mortgage property. 17. After hearing both the sides elaborately, this Court finds that the discussion made in the above decision (though involving circumstances pertaining to the Kerala Toddy Workers' Welfare Fund Act) is more with reference to the provisions of the Kerala Abkari Shops (Disposal in Auction) Rules, to arrive at the finding. Reference is also made to Section 28 of the Kerala Abkari Act and interference appears to have been made on the basis of the provisions as contained in the Kerala Abkari Act and the Kerala Abkari Shops (Disposal in Auction) Rules, read with the provisions of the Kerala Revenue Recovery Act; while the distinction with regard to the provisions under the Kerala Toddy Workers' Welfare Fund Act is not seen properly projected from the part of the parties on either side. This is more evident from the fact that, reference and reliance have of course been placed on the decision rendered by another learned Single Judge of this Court way back in 1981, i.e., in Baby v. State of Kerala and Others 1981 KHC 319 : 1981 KLT 510 : 1981 KLN 262 : 1981 KLT SN 14 referred to hereinbefore (rendered under the very same enactment) holding that the amounts due under the Kerala Toddy Workers' Welfare Fund Act will not get any 'priority' over the secured debt of the Bank. Accordingly, it has been clearly observed by the learned Judge in paragraph 16 of 2009 (1) KLT 105 : 2008 (4) KHC 691 : ILR 2008 (4) Ker. 506 as follows: This Court held that there is distinction between Section 9 of the Welfare Fund Act and Section 28 of the Abkari Act. This Court after referring to Section 68(1) of the R.R. Act read with Sections 2(j) and 3 of the R.R. Act held that the items coming under Section 20 are public revenue due on land. This Court further held that amounts which are by fiction of law treated as if they are public revenue due on land or land revenue are also public revenue due on land. This Court further held that amounts which are by fiction of law treated as if they are public revenue due on land or land revenue are also public revenue due on land. The distinction between public revenue due on land and other amounts which are not so deemed but recoverable under the R.R. Act appears to be that in respect of the former, a charge is automatically created by reason of Section 3, whereas in the case of the latter Section 3 is not attracted. This Court further held that money due under Section 9 of the Welfare Fund Act is not public revenue due on land and Section 3 creating a charge under the R.R. Act is not attracted although the amount as such is recoverable as in the case of any other land revenue, which would mean that, land revenue being part of the definition of public revenue due on land, it is recoverable by any of the modes prescribed for recovery of the latter. 18. The learned Judge has further held that money due under Section 9 of the Welfare Fund Act is not public revenue due on land and Section 3 creating a charge under the Kerala Revenue Recovery Act is not attracted, although the amount as such is recoverable as in the case of any other land revenue. It was thereafter, reference was made to the definition of the term 'public revenue due on land' under Section 2(j) and 'arrears of public revenue due on land' under Section 2(a); in respect of which charge is created under Section 3 of the Kerala Revenue Recovery Act as observed in paragraph 17 of the very same verdict. The Learned Judge also extracted the observations of the Apex Court in Dena Bank v. Bhikhabhai Prabhudas Parekh & Co. 2000 KHC 1224 : 2000 (5) SCC 694 : AIR 2000 SC 3654 in paragraph 25 of the above judgment in 2009 (1) KLT 105 : 2008 (4) KHC 691 : ILR 2008 (4) Ker. 506 as follows: The principle of priority of Government debts is founded on the rule of necessity and of public policy. 2000 KHC 1224 : 2000 (5) SCC 694 : AIR 2000 SC 3654 in paragraph 25 of the above judgment in 2009 (1) KLT 105 : 2008 (4) KHC 691 : ILR 2008 (4) Ker. 506 as follows: The principle of priority of Government debts is founded on the rule of necessity and of public policy. The basic justification for the claim for priority of State debts rests on the well-recognized principle that the State is entitled to raise money by taxation because unless adequate revenue is recovered by the State, it would not be able to function as a sovereign Government at all. However, the Crown's preferential right to recovery of debts over other creditors is confined to ordinary or unsecured creditors. 19. In view of the discussion of the legal provision as above, particularly the law declared by the Division Bench of this Court earlier and also the position made clear by the Apex Court, priority can be established, only if it is 'public revenue due on land' or there is a specific stipulation in the concerned statute providing 'priority' in respect of the amount due. 20. On examining the position in the above background, it is rather clear that there is already a finding by this Court in 1981 KHC 319 : 1981 KLT 510 : 1981 KLN 262 : 1981 KLT SN 14 that the amount due on Section 9 of the Kerala Toddy Workers' Welfare Fund Act is not 'public revenue due on land'; which has been extracted in paragraph 16 of the verdict reported in 2009 (1) KLT 105 2008 (4) KHC 691 : ILR 2008 (4) Ker. 506 as well. The said specific finding has not been doubted in any manner. As such, the 'priority' conferred under Section 3 of the Kerala Revenue Recovery Act is not available for recovery of the amount due under the Kerala Toddy Workers' Welfare Fund Act, though the same is recoverable invoking the machinery under the Kerala Revenue Recovery Act. In the Kerala Toddy Workers' Welfare Fund Act, there is no provision, like Section 33(C) Industrial Dispute Act. Section 23(B) KGST Act. Section 11(2) of the EPF Act. Section 26, 28 of Kerala Abkari Act read with Rule 5(11) of the Kerala Abkari Shoos (Disposal in Auction) Rules so as to confer any 'priority' for the amount due under the Toddy Workers' Welfare Fund Act. Section 23(B) KGST Act. Section 11(2) of the EPF Act. Section 26, 28 of Kerala Abkari Act read with Rule 5(11) of the Kerala Abkari Shoos (Disposal in Auction) Rules so as to confer any 'priority' for the amount due under the Toddy Workers' Welfare Fund Act. This being the position, the stand taken by the respondents in the counter-affidavit as well as in the statement to support the auction, is held as not correct or proper. 21. There is yet another contention for the petitioner Bank that the 'doctrine of priority' of first charge can be applied only so long as the property remains at the hands of the defaulter. Reliance is placed on the decision rendered by this Court in 1977 KLT 826 : 1977 KHC 289 (paragraph 6 and 7) and also on the observations made by the Division Bench of this Court in South Indian Bank v. State of Kerala reported in 2006 (1) KLT 65 : 2006 KHC 428. In the former decision, the learned Single Judge of this Court after making exhaustive analysis of the scope and applicability of the relevant provisions of law, in the light of the binding judicial precedents, as applicable to the English Law and also to the extent applicable to the Indian context held that, once the debtor is divested of his property in discharge of satisfaction of the debt due to the ordinary creditor before the conflict arises, it can't be proceeded against, since the property no longer belongs to the debtor. 22. In the decision rendered by the Division Bench of this Court in 2006 (1) KLT 65 : 2006 KHC 428 the question considered was whether the decree obtained by the Bank before introduction of Section 26B in the KGST Act will have any precedence, notwithstanding the first charge created in favour of the State under Section 26B. After discussing the mandate under the relevant provisions of law, and also taking note of the binding judicial precedents, it was held in paragraph 8 that, till the decree is executed through the Executing Court, title over the mortgaged property remains with the mortgagor observing that the decree passed by the Civil Court has only conclusively determined the rights of the parties and it will not affect the State, so long as the decree is not got executed by the Bank. This means once the decree is got executed and the defaulter is divested of the property, such property cannot be proceeded against for realisation of the amount, even by invoking the priority right of the State. 23. Coming to the case in hand, it is very much relevant to note that the Civil suit insisted by the petitioner Bank in 1999 was got decreed on 11/10/2000 as borne by Ext. P1. Subsequently, on filing EP 318/2000, the Bank was permitted to bid the property in auction as revealed from Ext. P2 Sale Certificate dated 10/03/2004 issued by the Court, which was followed by delivery of possession effected in favour of the Bank on 30/10/2004. This being the position, the property no longer remained to be at the hands of the defaulter, to have exercised any priority rights, as alleged, at the instance of the Kerala Toddy Worker's Welfare Fund Board. In any view of the matter, since this Court has already held that the amount due under Kerala Toddy Workers Welfare Fund Board to the Welfare Fund does not constitute arrears of 'public revenue due on land' and that there is not question of any priority right in this regard, the doors stand shut for ever in front of the respondents. In the above facts and circumstances, the petitioner succeeds. The 3rd respondent is directed to lift the attachment over the property in question, comprised in survey No. 267/2002 of the Koolimuttom Village covered by Ext. P2 sale certificate. Appropriate steps in this regard shall be taken and finalised forthwith, at any rate within two weeks from the date of receipt of a copy of this judgment. The Writ Petition is allowed. No costs. Writ Petition allowed.