JUDGMENT: The above Civil Miscellaneous Appeal is filed against the order and decree dated 22.06.2016 passed in E.A. No.184 of 2011 in EP number 209 of 2010 in OS number 571 of 2009 on the file of IV Additional Senior Civil Judge Guntur, whereby the claim petition filed by the appellant under Order XXI Ruels 97, 99 and 101 of the Code of Civil Procedure (for short ‘CPC’) was dismissed. 2. For the sake of convenience, parties shall be referred to as they are arrayed in claim petition. 3. The case of the claim petitioner in brief is that claim petition schedule property admeasuring 138.41 square yards of site along with industrial building, near Golden Engineering Enterprises, 2nd line, phase I and II, Auto Nagar, Guntur was purchased by the claim petitioner from State bank of Hyderabad, Chandramouli Nagar branch in the auction conducted by the bank. Claim petitioner became the highest bidder for Rs. 8,20,000. Sale was confirmed on 26.05.2011. After payment of the amount and sale certificate was issued in favour of the claim petitioner on 06.07.2011, on which date possession of the property was handed over to the claim petitioner. The sale certificate was registered on 07.07.2011 and the claim petitioner has been in possession and enjoyment of the claim petition schedule property since the date of its handing over possession. 4. While so, on 30.07.2011, Court Amin came to the claim petition schedule property in the absence of claim petitioner, to deliver possession of claim petition schedule property to the 1st respondent. However, the said delivery was resisted on behalf of the claim petitioner and Amin having noted the resistance went away informing that the 1st respondent obtained decree in O.S.No.571 of 2009 against the 2nd respondent, wherein suit was filed for recovery of money basing on promissory note executed by 2nd respondent. It was informed about the attachment of the property before judgement, passing of decree in favour of the 1st respondent, filing of execution petition by decree holder; bringing the property to the auction and participation of the decree holder in the auction with the leave of the court in E.P.No.209 of 2010 in O.S.No.571 of 2009. Subsequent to confirmation of sale and issuance of sale certificate, auction purchaser filed E.A.No.153 of 2011 and hence the Executing Court passed delivery order on 26.07.2011. 5. Subsequent to confirmation of sale and issuance of sale certificate, auction purchaser filed E.A.No.153 of 2011 and hence the Executing Court passed delivery order on 26.07.2011. 5. Claim petitioner having come to know about the proceedings, consulted the advocate. The advocate, in turn, informed the claim petitioner that 1st respondent herein filed O.S.No.571 of 2009 against 2nd respondent basing on promissory note dated 06.02.2007 executed by 2nd respondent for a sum of Rs.5,00,000/- and decreeing of the suit by the court below on 25.02.2010 for a sum of Rs.8,07,000/- with subsequent interest and costs. The claim petitioner was also intimated that 1st respondent herein filed I.A.No.864 of 2009 in OS number 571 of 2009 under Order 38 Rule 5 seeking attachment of the property before judgment in respect of the claim petition schedule property. 6. In the claim petition it was averred that 2nd respondent borrowed amount from State Bank of Hyderabad, Chandramouli Branch, Guntur on 05.08.2006 and at the time of obtaining loan, 2nd respondent deposited his title deeds and created equitable mortgage with the bank. Subsequently, as 2nd respondent failed to discharge the loan amount, the authorised officer of State Bank of Hyderabad, Guntur initiated proceedings under section 13(2) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (for short ‘SARFAESI Act’). Possession notice was issued and the same was published on 03.02.2011. The Bank officials filed Crl.M.P.No.39 of 2011 on the file of learned Chief Judicial Magistrate–cum-Prl.Assistant Sessions Judge, Guntur and as per the order, dated 17.02.2011 passed by the said Court wherein an Advocate Commissioner was appointed to take possession of the schedule property. Advocate Commissioner took possession of the property. Subsequent to handing over the possession of the claim petition property to the authorized officer, auction was conducted wherein claim petitioner emerged as highest bidder for Rs. 8,20,000/-. On 06.07.2011 Sale certificate was issued in favour of the claim petitioners and possession of property was handed over to her. 7. It was further averred in the claim petition that 1st and 2nd respondents colluded together and hence 1st respondent filed suit O.S.No.571 of 2009. 2nd respondent did not contest the suit. Decree holder, after obtaining permission from the Court participated in the auction and emerged as highest bidder for Rs. 12,15,000/- against the EP amount of 8,93,147/-. 7. It was further averred in the claim petition that 1st and 2nd respondents colluded together and hence 1st respondent filed suit O.S.No.571 of 2009. 2nd respondent did not contest the suit. Decree holder, after obtaining permission from the Court participated in the auction and emerged as highest bidder for Rs. 12,15,000/- against the EP amount of 8,93,147/-. When the Amin came to the property to deliver the property the same was objected and hence the claim petition was filed. 8. 1st respondent (decree holder) filed counter and opposed the application. In the counter it was contended inter alia that the claim petitioner is aware that sale of the claim schedule property was held subsequent to the attachment of the property in suit O.S.No.571 of 2009, passing of decree, dated 25.02.2010 in favour of 1st respondent; that sale was conducted in execution of the decree in which 1st respondent became the highest bidder; that sale certificate, dated 06.06.2011 was issued by the Executing Court. It was further averred by the 1st respondent that the sale certificate, dated 07.07.2011 obtained by the claim petitioner is invalid and doesn’t bind the 1st respondent. Pending enquiry in E.A.No.184 of 2011, claim petitioner demolished the building and started construction of new building and eventually prayed the court to dismiss the petition. 9. During the course of enquiry claim petitioner examined herself as PW1 and got examined PW2. Exs.A1 to A 10 were marked. On behalf of the respondents, the 1st respondent examined himself as RW1 and Exs.R1 and R2 were marked. Executing Court by order dated 22.06.2016 dismissed the claim petition. Aggrieved by the same the above civil miscellaneous appeal is filed. 10. Heard Sri K. Rama Koteswara Rao learned counsel appearing for the appellant and Smt. Kalla Tulasi Durgamba learned counsel representing 1st respondent. No representation on behalf of the 2nd respondent and in fact 2nd respondent remained exparte in claim petition. 11. Along with the CMA, CMAMP No.1515 2016 was filed under section 151 CPC to stay all further proceedings in EP No.209 of 2011 in O.S.No.571 of 2009 on the file of learned IV Additional Senior Civil Judge, Guntur pending disposal of the appeal. This court by order dated 27.09.2016 granted interim order and the same is extended from time to time. The interim order is in existence as on today. This court by order dated 27.09.2016 granted interim order and the same is extended from time to time. The interim order is in existence as on today. CMAMP No.1478 of 2017 was filed by the 1st respondent to vacate the interim order dated 27.09.2016. With the consent of the both the counsel, this Civil Miscellaneous Appeal itself was heard. 12. I.A. 1 of 2019 is filed under order XLI rule 27 CPC to receive Additional Documents viz. (1) original sale certificate dated 06.07.2011, (2) certified copy of the registered sale certificate vide No.3329/2011, dated 07.07.2011 and (3) original property tax dated 16.07.2018. No counter was filed by the 1st respondent. 13. Learned counsel for the claim petitioner would contend that the claim schedule property was mortgaged with the bank when respondent No.2 availed a loan of Rs.3,50,000/- on 05.08.2006 and thereby created equitable mortgage. He submits that going by the averments in the plaint, O.S.No.571 of 2009, 2nd respondent borrowed an amount of Rs.5,00,000/- from the 1st respondent by executing promissory note, dated 06.07.2007 for the said amount and since he failed to discharge the amount, respondent No.1 filed suit. He submits that according to the 1st respondent, in the suit 1st respondent filed I.A.No.826 of 2009 under Order XXXVIII Rule 5 of C.P.C. seeking attachment of the property and the same was ordered and eventually suit was decreed on 25.02.2010. Thus, he submits that execution of promissory note, filing of the suit, attachment order and passing of judgment and decree are subsequent to creation of equitable mortgage and hence, the suit claim is subject to mortgage. 14. Learned counsel contends that the executing Court dismissed the claim on a wrong presumption that judgment debtor transferred the property in favour of the claim petitioner after filing of the suit. He contends that executing Court went wrong in invoking Order XXI Rule 102 of CPC, which has no application to the facts of this case. He further contends that the executing Court did not consider Section 58 of the Transfer of Property Act (T.P. Act). Learned counsel also prayed the Court to receive the documents filed as additional evidence. He also would contend that certified copies could not be filed along with claim petition, though it was pleaded in the petition. Thus, prays to allow the I.A. as well as appeal. 15. Learned counsel also prayed the Court to receive the documents filed as additional evidence. He also would contend that certified copies could not be filed along with claim petition, though it was pleaded in the petition. Thus, prays to allow the I.A. as well as appeal. 15. Learned counsel for respondent No.1 supported the order impugned and contended that bank conducted auction subsequent to the attachment order passed under Order XXXVIII Rule 5 of CPC in the suit. In fact in the said suit, the auction was conducted on 16.03.2010 and 1st respondent being the decree holder, after permission of the Court, participated in the auction and emerged as the highest bidder for Rs.12,15,000/-. Thus, learned counsel for 1st respondent contends that the order of the Court below need not be interfered with. 16. The following points arise for consideration: 1. Whether the appellant being auction purchaser of property pursuant to the mortgage had right of precedence over the schedule property than the decree holder-1st respondent being auction purchaser pursuant to a decree in civil suit filed basing on promissory note?. 2. Whether the order under appeal is liable to be set aside? 3. To what relief? 17. 2nd Respondent herein is borrower of State Bank of Hyderabad, Chandramouli Branch, Guntur. He borrowed an amount of Rs.3,50,000/- 05.08.2006 from the said bank and deposited title deeds whereby he created equitable mortgage with the bank. After creating equitable mortgage, 2nd respondent borrowed an amount of Rs.5,00,000/- from 1st respondent herein on 06.02.2007 by executing promissory note in favour of 1st respondent herein for the said amount. 18. Since 2nd respondent failed to discharge the amount, 1st respondent filed O.S.No.571 of 2009 on the file of learned IV Additional Senior Civil Judge, Guntur and also filed I.A.No.826 of 2009 under Order XXXVIII Rule 5 seeking attachment of the property before judgment. 2nd respondent remained ex parte in the suit and the suit was decreed on 25.02.2010. Subsequently, E.P.No.209 of 2010 was filed and the property was brought to sale. Auction was conducted on 16.03.2011 and the decree holder/1st respondent, after obtaining permission of the Court participated in the auction. 1st respondent became the highest bidder for Rs.12,15,000/-. Sale certificate was issued on 06.06.2011 and according to the 1st respondent possession was delivered to him on 26.07.2011. 19. Auction was conducted on 16.03.2011 and the decree holder/1st respondent, after obtaining permission of the Court participated in the auction. 1st respondent became the highest bidder for Rs.12,15,000/-. Sale certificate was issued on 06.06.2011 and according to the 1st respondent possession was delivered to him on 26.07.2011. 19. 2nd respondent failed to discharge the loan amount, the authorized officer of State Bank of Hyderabad initiated proceedings under the SARFAESI Act. The authorized officer followed the procedure as contemplated under Sections 13(2) and 13(4) of the SARFAESI Act. 20. Crl.M.P.No.39 of 2011 was filed by the authorized officer before learned Chief Judicial Magistrate –cum- Prl. Assistant Sessions Judge and Advocate Commissioner was appointed by order, dated 17.02.2011 to take possession of the property. Accordingly, bank has taken possession of the property through the Advocate Commissioner on 01.03.2011 and thereafter bank sold the property on 26.04.2011 by way of auction. The claim petitioner participated in the auction and emerged as the highest bidder for Rs.8,20,000/-. The possession of property was delivered to the petitioner on 06.07.2011. 21. A perusal of order and documents clearly discloses about creation of mortgage and subsequent procedure followed by the bank officials under the SARFAESI Act. Though the claim petitioner filed all the relevant documents along with the claim petition, registered sale certificate was not marked as exhibit. The document mentioned at serial No.26 of list of documents, is copy of registered sale certificate, dated 07.07.2011. 22. Along with this appeal I.A.No.1 of 2019 is filed to receive (1) original sale deed, dated 06.07.2011, (2) certified copy of registered sale certificate, dated 07.07.2011 and (3) original property tax, dated 16.07.2018. At para 9 of the affidavit, it was contended that registered sale certificate was misplaced and hence, the same could not be filed and that non-filing of original registered sale certificate is neither intentional nor wilful. It was further averred in the affidavit that when miscellaneous appeal was listed before, this Court directed the claim petitioner to file original documents. 23. A perusal of the order passed by lower Court would indicate that the claim petitioner did not file registered sale certificate dated 07.07.2011, which according to the trial Court is crucial document. The lower Court did not consider the crucial and relevant aspect whether mortgage is prior to the execution of promissory note and the attachment order in the suit. 24. The lower Court did not consider the crucial and relevant aspect whether mortgage is prior to the execution of promissory note and the attachment order in the suit. 24. The point arose in the claim petition which could have been addressed by Executing Court is whether the mortgage is prior in point of time or execution of promissory note and attachment before judgment is at prior point of time? However, that point was not answered by the executing Court. Since all the material is before the Court the finding of the executing Court that claim petitioner did not produce original sale certificate is unwarranted. Dismissing the claim petition placing reliance on Order XXI Rule 102 of CPC is also beyond the scope of petition. 25. When a mortgage is created in terms of the provisions of the Transfer of Property Act, it amounts to an encumbrance. An order of attachment before judgment creates no charge. The quality of the mortgage as an encumbrance does not get watered down to be subservient to by an order of attachment by the civil court under Code of Civil Procedure. That order of attachment does not override or deserves to be preferred over the rights of a mortgagee or the effect of the mortgage as an encumbrance 26. In Housing Development Finance Corporation v. Sub Registry Officer, 2011 (3) KLJ 561 wherein the issue arose under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 Kerala High Court held as under: “This court finds that the rights and liberties conferred on the creditor/bank by virtue of mortgage created in the year 2001 and the right to proceed under the relevant provisions of the SARFAESI Act cannot be defeated because of the subsequent attachments ordered by the civil courts in 2007-2009. As such, the sale conducted on 24.11.2010, leading to issuance of Ext.P4 sale certificate, is complete in all respects and the title stands conveyed to the second petitioner”. 27. As such, the sale conducted on 24.11.2010, leading to issuance of Ext.P4 sale certificate, is complete in all respects and the title stands conveyed to the second petitioner”. 27. In City Union Bank Limited v. Sub-Registrar, Peddapalli & Ors., Manu/HY/0183/2018 a Division Bench of the High Court for the State of Telangana and the State of Andhra Pradesh, held that equitable mortgage, which was duly created and registered in favour of the secured creditor being much prior to the order of attachment before judgment, the sale certificate issued under the provisions of the SARFAESI Act stands altogether on a different footing under law and the order of attachment before judgment will not have any bearing on the SARFAESI proceedings. It was further held that Section 26E of the SARFAESI Act makes it clear that notwithstanding anything contained in any other law for the time being in force, after registration of the security, the debts due to any secured creditor shall be paid in priority over all other debts and all revenues, taxes, cesses and other rates payable to the Central Government or State Government or local authority. 28. As noted supra, the crucial point to be decided was not addressed by Executing Court. On that ground alone the order under appeal is liable to be set aside. Apart from the same, original documents (1) sale deed, dated 06.07.2011, (2) certified copy of registered sale certificate, dated 07.07.2011 and (3) property tax, dated 16.07.2018 were filed along with the appeal by way of interlocutory application under Order XI Rule 27 CPC. No counter was filed opposing the same. Proper and valid reasons were assigned to receive those documents. In fact, those documents are also very much necessary in adjudicating the disputes. The failure of the appellant in not filing the originals before executing court is neither wilful nor wanton. For proper adjudication, those documents are necessary. 29. In view of the narration supra, this Court is of the opinion that the order under appeal is unsustainable and hence it is hereby set aside. Claim Petition is remanded to the Executing Court to decide afresh after receiving and marking the documents three in number referred to supra as exhibits. 30. For proper adjudication, those documents are necessary. 29. In view of the narration supra, this Court is of the opinion that the order under appeal is unsustainable and hence it is hereby set aside. Claim Petition is remanded to the Executing Court to decide afresh after receiving and marking the documents three in number referred to supra as exhibits. 30. The Executing Court shall consider as to if Mortgage is prior in point of time, and if so, the consequences of execution of promissory note and attachment before judgment of the mortgaged property keeping in view Sec 58 of Transfer of Property Act and Order XXXVIII CPC. The Executing Court also if necessary permit the parties to lead evidence. The Executing Court shall frame point referred to supra which is relevant in the facts of this case. 31. Accordingly, this Civil Miscellaneous Appeal is allowed by setting aside the order dated 22.06.2016 passed in E.A. No.184 of 2011 in EP number 209 of 2010 in OS number 571 of 2009 on the file of IV Additional Senior Civil Judge, Guntur. The matter is remanded to learned IV Senior Civil Judge, Guntur for fresh consideration with a direction to receive the documents i.e. (1) original sale certificate, dated 06.07.2011, (2) certified copy registered sale certificate bearing No.313 of 2011, dated 07.07.2011 (3) and original property tax receipt, dated 16.11.2018. If the parties intend to lead any evidence apart from the evidence, which is already on record, the trial Court is at liberty to permit them to lead evidence. The trial Court shall dispose of the claim petition as expeditiously as possible within a period of six months from the date of the order. Registry is directed to send the originals filed along with I.A.1 of 2019 to the Lower Court without fail. No order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.