JUDGMENT : VENUTHURUMALLI GOPALA KRISHNA RAO, J. 1. This Civil Miscellaneous Appeal is filed by the appellant challenging the order, dated 18.06.2013 passed in E.A.No.826 of 2010 in E.P.No.26 of 2007 in Arbitration Application No.66 of 1999 by the I Additional District Judge, Rajahmundry (“Executing Court” for short). 2. The appellant herein is the petitioner-3 rd party objector; 1 st respondent herein is the Decree Holder; 2 nd respondent herein is the Judgment Debtor and the 3 rd respondent herein is the auction purchaser in E.A.No.826 of 2010 in E.P.No.26 of 2007 in Arbitration Application No.66 of 1999. 3. The appellant/petitioner-3 rd party objector filed E.A.No.826 of 2010 in E.P.No.26 of 2007 in Arbitration Application No.66 of 1999 praying to adjudicate that the execution of sale deed, dated 05.10.2009 held in E.P.No.26 of 2007 in AA No.66 of 1999 as null and void, non est and decide the rights of respondent Nos.1 and 3, to take possession of Execution Petition schedule property or to dispossess the petitioner there from. 4. Both the parties in the Appeal will be referred to as they are arrayed before the Executing Court. 5. The brief averments in E.A.No.826 of 2010 in E.P.No.26 of 2007 in Arbitration Application No.66 of 1999, are as under: (i) The petitioner is a third party who is a mortgagee of Execution Petition schedule property under equitable mortgage said to have been created by Kaniganti Durganand by depositing the title deed, dated 11.06.2004. The Execution Petition schedule property belong to judgment debtor. Judgment debtor obtained loan from Bank of Baroda, Bhimavaram on 29.08.1992 by depositing the title deeds. Thereafter the said property was attached in E.P.No.41 of 2002. The Bank of Baroda filed an application before Debt Recovery Tribunal against the present judgment debtor. In that Execution Petition, he filed O.A.No.173 of 2002. In that O.A., the judgment debtor filed an application I.A.No.116 of 2004 before Debt Recovery Tribunal seeking permission to sell the property for a private sale on 29.02.2004. The Debt Recovery Tribunal granted permission on 03.03.2004 to sell item No.12 of the O.A. schedule property. Judgment debtor sold the property to one Durganand with the permission of Debt Recovery Tribunal on 07.06.2004. The said Durganand borrowed loan from State Bank of India, Kakinada and deposited the title deeds with the bank. The Debt Recovery Tribunal granted permission on 03.03.2004 to sell item No.12 of the O.A. schedule property. Judgment debtor sold the property to one Durganand with the permission of Debt Recovery Tribunal on 07.06.2004. The said Durganand borrowed loan from State Bank of India, Kakinada and deposited the title deeds with the bank. The bank had advanced the amount to the said Durganand for purchase of the property and the title deeds under which said Durganand purchased and deposited with the bank. (ii) In the meanwhile, the decree-holder filed the present Execution Petition and brought the property to sale in which the 2 nd respondent/auction purchaser purchased the property on 05.10.2009. Sale was confirmed on 08.09.2010. When the Amin went to obtain delivery, there was an obstruction and the present petition by the bank has been filed. (iii) The decree holder or the auction purchaser have to take steps before the Debt Recovery Tribunal and they cannot take the property through the Court. Thus, the sale is vitiated and the sale certificate is not proper. The auction purchaser, therefore, cannot dispossess the petitioner, because, he is a subsequent mortgagee interested in the Execution Petition schedule property. Therefore, the auction purchaser who is an individual cannot purchase the property in his individual capacity as the decree holder is Yuvraj Finance Corporation Private Limited. The 1/4 th bid amount was not deposited by the highest bidder as the auction purchaser is not the decree holder, he cannot made set off. 6. The 1 st respondent/decree-holder filed counter contending that the present petition is not maintainable as the sale conducted by this Court is legal and valid. The sale deed, dated 11.06.2004 is hit by Section 64 of CPC as the said sale is after attachment of the property by this Court on 02.08.2002. The claimant is not a secured creditor. Kaniganti Durganand who filed petitions under Order 21, Rule 58 and under Order 21, Rule 90 CPC which were dismissed on merits. Further, the petitioner is not claiming right through the judgment debtor that he is claiming rights as third party. There are no merits in the application and Kaniganti Durganand is a transferee pendent lite and as such he is bound by the decree passed against his vendor judgment debtor. There is no necessity to determine any question raised by the petitioner. 7. There are no merits in the application and Kaniganti Durganand is a transferee pendent lite and as such he is bound by the decree passed against his vendor judgment debtor. There is no necessity to determine any question raised by the petitioner. 7. Based on the above pleadings, the Executing Court framed the following points for consideration: (1) Whether the 3 rd party objector/petitioner has got right in the subject matter of the EP schedule property? (2) Whether the execution of sale deed, dated 05.10.2009 in EP.No.26 of 2007 in AA No.66 of 1999 is to be declared as null and void as non est? 8. During the course of enquiry in the Executing Court, on behalf of the petitioner, P.W.1 was examined and Ex.A.1 to Ex.A.12 were marked. On behalf of the respondents, R.W.1 was examined and no documents were marked. 9. After hearing the arguments of both sides, the Executing Court dismissed the application in E.A.No.826 of 2010 vide its order, dated 18.06.2013, against which the present Civil Miscellaneous Appeal is preferred by the petitioner-3 rd party objector in the application in questioning the order passed by the Executing Court. 10. Heard Sri D. Purnachandra Reddy, learned counsel for the appellant and heard Sri T.V. Jaggi Reddy, learned counsel for the 1 st respondent/Decree Holder. 11. Learned counsel for the appellant would contend that the order passed by the Executing Court is illegal, contrary to law, weight of evidence and against the probabilities of the case. He would further contend that the Executing Court erred in dismissing the petition in E.A.No.826 of 2010 in E.P.No.26 of 2007 in A.A.No.66 of 1999. He would further contend that the Executing Court erred in holding that the appellant-bank has no right to cause objection for the delivery of the property and seek adjudication as his mortgage of deposit of title deeds is hit by Section 64 of CPC. He would further contend that the Executing Court erred in issuing sale certificate, dated 21.09.2010 in execution petition proceedings. He would further contend that the Executing Court came to a wrong conclusion and dismissed the E.A.No.826 of 2010 and the appeal may be allowed by setting aside the order passed by the Executing Court. 12. He would further contend that the Executing Court erred in issuing sale certificate, dated 21.09.2010 in execution petition proceedings. He would further contend that the Executing Court came to a wrong conclusion and dismissed the E.A.No.826 of 2010 and the appeal may be allowed by setting aside the order passed by the Executing Court. 12. Per contra, learned counsel for the 1 st respondent/decree holder, would contend that on appreciation of the entire evidence on record, the Executing Court rightly dismissed the application and there is no need to interfere with the finding given by the Executing Court and he would contend that the appeal may be dismissed. 13. Now, the points for determination are as follows: (1) Whether the sale held in E.P.No.26 of 2007 in A.A.No.66 of 1999 is null and void and non est? (2) Whether the Executing Court is justified in dismissing E.A.No.826 of 2010 in E.P.No.26 of 2007 in Arbitration Application No.66 of 1999 14. Point No.1: Whether the sale held in E.P.No.26 of 2007 in A.A.No.66 of 1999 is null and void and non est? The appellant/petitioner herein is third party to the execution petition proceedings. According to the appellant, one Kaniganti Durganand created equitable mortgage in favour of appellant bank in the year 2004 and he deposited title deeds in favour of appellant bank. The appellant would contend that the Bank of Baroda filed an application vide O.A.No.173 of 2002 before the Debt Recovery Tribunal against the judgment debtor and in that O.A.No.173 of 2002, the judgment debtor filed application vide I.A.No.116 of 2004 before the Debt Recovery Tribunal, seeking permission to sell the property for a private sale on 29.02.2004 and accordingly, Debt Recovery Tribunal accorded permission to the judgment debtor. The appellant would contend that the judgment debtor sold the property to Kaniganti Durganand and the said Durganand borrowed loan from the appellant bank i.e., State Bank of India, Kakinada on 11.06.2004 and deposited the title deeds with the Bank by creating equitable mortgage. 15. The appellant would contend that the judgment debtor sold the property to Kaniganti Durganand and the said Durganand borrowed loan from the appellant bank i.e., State Bank of India, Kakinada on 11.06.2004 and deposited the title deeds with the Bank by creating equitable mortgage. 15. It was contended by the learned counsel for the respondent/ decree holder, Sri T.V. Jaggi Reddy, that the appellant is not secured creditor and there are no merits in the application filed by the appellant before the Executing Court and the said Durgnanad is a transferee pendent lite and as such he is bound by decree against his vendor i.e., judgment debtor herein and that he sought dismissal of the application filed before the Executing Court. He would further contend that the order passed by the Executing Court by dismissing the application filed by the appellant herein is justifiable and there is no need to interfere with the said finding. 16. The material on record reveals that the 1 st respondent/decree holder advanced loan to the 2 nd respondent/judgment debtor and subsequently the judgment debtor failed to discharge the same and later the decree holder filed Arbitration O.P. and obtained an award on 20.02.2002 in A.A.No.66 of 1999 and E.P.No.43 of 2002 is filed by the decree holder and the schedule immovable property is attached by the Executing Court in the said execution petition on 20.06.2002 and later on judgment debtor made appearance on 27.09.2002 through her Advocate. Though two years time has been granted, the judgment debtor did not choose to file a counter. It is immaterial to say that the property was attached by the Executing Court on 02.08.2002 and attachment order was affixed to the house wall of the judgment debtor, the same is notice to public in large. Subsequently, Durganand i.e., mortgager borrowed the loan from the appellant bank. For the reasons best known to the appellant, Durganand is not added as party in the present application. The mortgager of the present petitioner/bank i.e., Durganand filed E.A.No.261 of 2005 in E.P.43 of 2002 and the said application was dismissed on merits by the Executing Court and subsequently the said execution petition was closed on 10.10.2006, as sale could not be held. 17. The mortgager of the present petitioner/bank i.e., Durganand filed E.A.No.261 of 2005 in E.P.43 of 2002 and the said application was dismissed on merits by the Executing Court and subsequently the said execution petition was closed on 10.10.2006, as sale could not be held. 17. It is not in dispute by both sides that the decree holder filed the present execution petition vide E.P.No.26 of 2007 on 10.11.2006 and it was numbered in the year 2007 and notice was served on the 2 nd respondent/ judgment debtor and on 24.07.2009 the judgment debtor made appearance through her Advocate and thereafter a detailed counter has been filed by the judgment debtor and after hearing both sides, the Executing Court passed an order on 22.04.2008, for filing sale papers and encumbrance certificate and proceed with the execution by overruling the objections made by the judgment debtor in the counter. It is also immaterial to say that the judgment debtor filed E.A.No.157 of 2008 in the Arbitration Award proceedings passed in A.A.No.66 of 1999 as it is not executable and the said application was dismissed on merits and the judgment debtor also filed A.A.O.P.No.2 of 2006 as against the award passed by the Arbitrator and the same was dismissed on merits. It is not in dispute by both sides in this application that the sale was held on 05.10.2009 and the same was also confirmed on 08.09.2010. Subsequently, the mortgager of the appellant bank filed E.A.No.495 of 2009 to set aside the sale under Order XXI Rule 90 of CPC and the said application was dismissed on merits by the Executing Court in the year 2010 itself. Soon after dismissal of the said application filed by the mortgager of the appellant bank, the mortgagee i.e., appellant herein filed E.A.No.826 of 2010 and the same was dismissed by the Executing Court against which the present Civil Miscellaneous Appeal is filed. The material on record further reveals that the mortgage filed E.A.No.495 of 2009 much prior to the application filed by the appellant bank before the Executing Court vide E.A.No.826 of 2010 and delivery was also ordered to the decree holder. 18. The primary objection taken by the appellant herein is that Section 64 (1) of CPC has no application to the present case on hand and there was a relationship of mortgage in between the appellant bank and mortgager. 18. The primary objection taken by the appellant herein is that Section 64 (1) of CPC has no application to the present case on hand and there was a relationship of mortgage in between the appellant bank and mortgager. It is not in dispute that the decree holder filed Execution Petition vide E.P.No.43 of 2002 against the 2 nd respondent herein and the Executing Court ordered attachment in the year 2002 itself and the attachment was also effected on 02.08.2002 and the said attachment was also affixed on the house wall of the judgment debtor for notice the public in large. Therefore, by the date of attachment on 02.08.2002 there is no relationship of mortgager and mortgagee in between Durganand and appellant bank herein. The serious objection taken by the appellant herein is that the auction purchaser is not entitled to seek set off the suit claim because the auction purchaser and the 1 st respondent are different. It is not in dispute that the auction purchaser is no other than the Managing Director of the decree holder i.e., 1 st respondent, 1 st respondent is a firm represented by its Managing Director, therefore, there is no substance in the aforesaid contention taken by the appellant. Furthermore, the appellant is not a secured creditor and the appellant bank was not impleaded as party in appeal filed by Durganand. By the date of attachment effected in execution petition proceedings i.e., E.P.No.43 of 2002 there is no relationship of mortgager and mortgagee in between appellant and Durganand. The appellant bank granted loan to Durganand in the year 2004 and the said Durganand created equitable mortgage by depositing the title deeds with the appellant bank on 11.06.2004, by that date the attachment against the schedule property is pending. As stated supra, the schedule property was attached in the year 2002 itself, therefore, the attachment effected is much earlier to the deposit of title deeds by mortgager i.e., Durganand in favour of appellant bank and Durganand obtained a fresh loan from the appellant bank in the year 2004. It is no doubt that the attachment under Order XXI Rule 99 CPC is an independent right. It is no doubt that the attachment under Order XXI Rule 99 CPC is an independent right. By the date of attachment order passed by the Executing Court and by the date of attachment effected, no loan was obtained by the mortgager from the appellant bank and the loan was obtained by the mortgager soon after two years from the date of attachment effected on the schedule immovable property. Another contention taken by the learned counsel for the appellant is that soon after obtained permission by the judgment debtor from Debt Recovery Tribunal, the mortgager purchased the property. It is relevant to say the judgment debtor herein got much knowledge about the execution proceedings in which the attachment order was made and attachment was effected in the year 2002 itself. As stated supra, the judgment debtor made an appearance through her counsel in the year 2002 itself and in the year 2004 without obtaining any permission from the Executing Court, the judgment debtor executed a sale deed in favour of Durganand. As stated supra, the mortgager filed a claim petition vide E.A.No.261 of 2005, the same is dismissed on merits by the Execution Court. Furthermore, the mortgager of the appellant bank by name Durganand had filed E.A.No.495 of 2009 after the sale was held by this Court, to set aside the sale and the same was dismissed on merits on 08.09.2010. After petition filed by the mortgager, the mortgagee bank filed the present E.A.No.826 of 2006. Therefore, the present application is not at all maintainable because after having knowledge that the mortgager of the appellant bank filed the application for setting aside the sale in the year 2008 and the same was dismissed on merits by the Executing Court on 08.09.2010, the present application is filed by the appellant bank in the year 2011. It is relevant to say that the Manager of the appellant bank herein made an admission in his evidence in cross examination itself i.e., P.W.1 that loan obtained by the mortgager from the appellant bank is a fresh loan and it is not a takeover loan from Bank of Baroda to continue the earlier mortgage transaction. Moreover, by the date of notice issued under original of Ex.A.5, dated 14.11.2009, the entire attachment and sale proceedings were also completed. Moreover, by the date of notice issued under original of Ex.A.5, dated 14.11.2009, the entire attachment and sale proceedings were also completed. P.W.1 admits in his evidence in cross examination itself that the petitioner bank has no right to deal with the property once a notice under Order XIII Rule 4 of SARFAESI Act, 2002 is given and it is heard only under SARFAESI Act, the authorities has to right to deal with it. Another crucial admission made by P.W.1 is that after issuance of Section 13 (4) notice under Act 54 of 2002, third party has no business to deal with the property and the Securitization Officer has got every right to deal with the property and securitization proceedings are different proceedings and the Securitization Officer is different, but not the State Bank of India. The appellant relied on Ex.A.8 proceedings initiated by the Bank of Baroda. Those proceedings were taken soon after attachment effected on the schedule immovable property in execution petition proceedings. By giving cogent reasons, the Executing Court rightly dismissed the application. 19. Sri T.V. Jaggi Reddy, learned counsel for the respondent/decree holder, draw the attention of this Court that if the appellant bank aggrieved the orders passed by the Executing Court, if there is any irregularity, they have to take necessary steps and they filed O.A. before the Administration Tribunal and the said O.A. is dismissed by the Administration Tribunal. Another contention taken by the learned counsel for the respondent/decree holder is that the Civil Miscellaneous Appeal is not at all maintainable, instead of filing the appeal suit, the appellant herein filed Civil Miscellaneous Appeal before this Court and the same is not at all maintainable 20. It was contended by the learned counsel for appellant that in view of the decision passed by the Single Judge of this Court in Zafu Javeed vs. V. Narasimha Reddy and others , 1998 (6) ALD 663 , the Civil Miscellaneous Appeal is maintainable. As seen from the case law relied on by the learned counsel for appellant, by following the judgment passed by the Division Bench of this Court in B. Nookaraju vs. M.S.N. Charities and others , AIR 1994 AP 334 , the learned Single Judge of this Court came to a conclusion that the Civil Miscellaneous Appeal is maintainable. As seen from the case law relied on by the learned counsel for appellant, by following the judgment passed by the Division Bench of this Court in B. Nookaraju vs. M.S.N. Charities and others , AIR 1994 AP 334 , the learned Single Judge of this Court came to a conclusion that the Civil Miscellaneous Appeal is maintainable. But the Full Bench of this Court held in Gurram Seetharam Reddy vs. Gunti Yashoda , 2004 (6) ALD 175 (FB) , that the Civil Miscellaneous Appeal is not at all maintainable against order passed under Rule 98 or Rule 100 of Order XXI a regular appeal has to be filed by the appellant. In Gurram Seetharam Reddy’s case (3 supra), a Full Bench of this Court held as follows: “Against the orders passed under Rule 58(3) and Rules 98 and 100 of Order 21 C.P.C. regular appeals under Section 96 and not miscellaneous appeals under Section 104 read with Order 43 Rule 1 C.P.C. are maintainable and that the judgment of this Court in Nookaraju’s case (supra) does not represent the correct position of law.” The Full Bench of this Court overruled the decision passed by the Division Bench of this Court in Nookaraju’s case (supra). Therefore, as per the law laid down by the Full Bench of this Court a regular appeal has to be maintainable against the order passed by the Executing Court and the present Civil Miscellaneous Appeal is not at all maintainable. As stated supra, by the date of borrowing loan by the mortgager, there was an attachment on the schedule immovable property in the year 2002 itself. The contention of the mortgager is that after borrowing loan from the Bank in the year 2004, he purchased the property from the judgment debtor. As stated supra, by the date of availing loan by the mortgager, the attachment was effected soon after two years from the date of attachment effected, mortgager borrowed loan from the appellant Bank in the year 2004 and created an equitable mortgage with the appellant Bank. The mortgager filed application in the year 2009 itself by challenging the sale held by the Executing Court vide E.A.No.495 of 2009 and the same was dismissed on merits on 08.09.2010 and subsequent to the dismissal of the application filed by the mortgager, the mortgagee again filed the present application under Order XXI Rule 99 CPC. The mortgager filed application in the year 2009 itself by challenging the sale held by the Executing Court vide E.A.No.495 of 2009 and the same was dismissed on merits on 08.09.2010 and subsequent to the dismissal of the application filed by the mortgager, the mortgagee again filed the present application under Order XXI Rule 99 CPC. By giving cogent reasons, the Executing Court rightly dismissed the said application. 21. For the aforesaid reasons, the sale held in E.P.No.26 of 2007 in A.A.No.66 of 1999 is valid. Accordingly, point No.1 is answered against the appellant. 22. Point No.2: Whether the Executing Court is justified in dismissing E.A.No.826 of 2010 in E.P.No.26 of 2007 in Arbitration Application No.66 of 1999 In view of my findings on point No.1, the Executing Court is justified in dismissing the petition in E.A.No.826 of 2010 in E.P.No.26 of 2007 in Arbitration Application No.66 of 1999 filed by the appellant herein. 23. In the result, this Civil Miscellaneous Appeal is dismissed. Considering the facts and circumstances of the case, each party do bear their own costs in this appeal. As a sequel, miscellaneous petitions, if any, pending in this appeal shall stand closed.