Abdul Salam v. The Sub Registrar, Tirur Office of the Sub Registrar, Malappuram District

**WP(C) NO. 14794 OF 2021** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 10[TH] DAY OF AUGUST 2021 / 19TH SRAVANA, 1943** ## **WP(C) NO. 14794 OF 2021** ## **PETITIONER:** ABDUL SALAM AGED 64 YEARS S/O.BEERAN HAJI, KUNHALAKATH HOUSE, PO PARAVANNA, PACHATTIRI AMSOM, PARAVANNA DESOM, TIRUR TALUK, MALAPPURAM DISTRICT -676 502 BY ADVS. JAMSHEED HAFIZ K.K.NESNA ## **RESPONDENT:** THE SUB REGISTRAR, TIRUR OFFICE OF THE SUB REGISTRAR, MALAPPURAM DISTRICT 676 101 SRI SAYED M THANGAL, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 14794 OF 2021** **2** ## **JUDGMENT** The petitioner states that he is the absolute owner in title and possession of property having an extent of 4 cents comprised in Sy. No. 22/11 of Vettom Village. It is contended that O.S.No. 250/2002 was instituted before the Court of Munsiff, Tirur by ‘Sopanam Chits and Financiers Pvt. Ltd’ seeking for the realisation of a sum of Rs.10,500/- together with interest. An attachment was obtained over the property mentioned above as per order in I.A.No.1634/2002 in O.S.No.250 of 2002. The suit was decreed as per judgment dated 4.12.2003. Later, the plaintiff filed E.P.No.306/2004 and during the pendency of the Execution Petition, the petitioner paid up the decree amount. The E.P. was closed on 11.11.2005. The petitioner states that recently when he applied for and obtained the encumbrance certificate, it was found that the fact of the lifting of attachment was not brought to the notice of the Sub Registrar by the Court though the attachment was lifted. In the said circumstances, the petitioner approached the Court of Munsiff and filed Ext.P4 application for communicating the order of attachment to the Sub Registrar. The petitioner contends that though the application was taken on file, the same was not numbered as the attachment application and the orders passed thereon were not found among the records. According to the petitioner, when the Execution Petition was closed, the said fact ought to have been brought to the notice of the Sub Registrar and the petitioner cannot be faulted. It is in the afore circumstances that the petitioner is **WP(C) NO. 14794 OF 2021** **3** ## before this Court seeking the following reliefs: a) Issue a writ of mandamus or any other appropriate writ or direction, directing the respondent to efface the attachment on the immovable property of the petitioner having an extent of 4 cents, comprised in Sy. No. 22/11 of Vettom Village, Malappuram District in I.A.No. 1634/2002 in O.S.No. 250/2002 of Munsiff Court, Tirur and make necessary changes in the official records in that regard, within such time as may be pleased by this Hon’ble Court. 2. Sri. Jamsheed Hafiz, the learned counsel appearing for the petitioner submits that the amount ordered as per Ext.P1 judgment was cleared off by the petitioner in the year 2005. Though the learned counsel has not produced any records to substantiate the said fact, it appears from Ext.P4 application that the petitioner has asserted by way of a sworn affidavit that the entire amounts have been paid. 3. Order XXXVIII, Rule 5 of the Code of Civil Procedure Code, 1908 deals with attachment before judgment, which reads thus; "5. Where defendant may be called upon to furnish security for production of property.- (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, - (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, **WP(C) NO. 14794 OF 2021** **4** within a time to be fixed by it, either to furnish security, in such sums as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof. - (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. (4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void." 4. In **Sathish N. Rajan v. District Collector, Ernakulam and others** [2019 (2) KHC 634] this Court had occasion to hold that the sole object of Order XXXVIII, Rule 5 of the Code is to give an assurance or guarantee to the plaintiff who filed the suit that if a decree is passed in his/her favour it would be satisfied and the defendant cannot transfer his/her property with an intention to delay or defeat the decree. It is with a view to secure the decree and to avoid alienation of the property by the defendant to defraud or delay the claim of the plaintiff an order of attachment can be passed and thus the defendant can be prevented from dealing with his property. ## 5. Order XXXVIII, Rule 9 of the Code deals with removal of attachment when security furnished or suit dismissed, which reads thus; - "9. Removal of attachment when security furnished or suit dismissed.- **WP(C) NO. 14794 OF 2021** **5** Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the cost of the attachment, or when the suit is dismissed." 6. Rule 185 of the Kerala Civil Rules of Practice, 1971 deals with the communication of judgment, decree or order to the Registering Authority, which reads thus: "185. Communication of judgment, decree or order to the Registering Authority.- Every Court,- (a) passing a decree or order for the cancellation of an instrument registered under the law relating to the registration of documents; (b) pronouncing any judgment or passing any decree or order creating, declaring, transferring, limiting or extinguishing any right, title or interest to or in immovable property in favour of or of any person; (c) varying, reversing or setting aside any such judgment, decree or order; and (d) passing an order for the attachment of immovable property or for the release of any immovable property from attachment, shall send a copy of such judgment, decree or order, on plain paper, verified as correct, together with a memorandum describing the property, as far as may be practicable in the manner required by Section 21 of the Registration Act, 1908 (Central Act 16 of 1908) to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such judgment, decree or order is situated." ## 7. In **Sathish N. Rajan** (supra), this Court held that, under Order **WP(C) NO. 14794 OF 2021** **6** XXXVIII, Rule 9 of the Code, the court shall withdraw the attachment when security is furnished or when suit is dismissed. In such situations also the court should be conscious of the position and without any delay the order of withdrawing/lifting the attachment shall be passed. The court shall also ensure that the order is communicated to the Sub Registrar Office concerned without any delay. 8. A conjoint reading of Rule 185 of the Kerala Civil Rules of Practice and Order XXXVIII, Rule 9 of the Code makes it crystal clear that communication to the Registering Authority shall be made with due application of mind, without delay, otherwise, it would adversely affect the rights and interests of the person against whom the order of attachment was ordered. The court exercising such power should bear in mind that the intimation regarding withdrawing/lifting of attachment shall be forwarded to the Sub Registrar Office concerned then and there, even if no fee/batta for communication is remitted otherwise, the victim may be an innocent person and he cannot be compelled to face the hardship or predicament of running from pillar to post to deal with his property. (see **Asha Girish Shenoy v. Sub Registrar** [judgment dated 3.2.2021 in W.P.(C) No. 1805/2021]. 9. Ext.P4 is the application filed by the petitioner before the Court of Munsiff seeking to communicate the order of lifting of the attachment with the Sub Registrar. The endorsement in Ext.P4 would reveal that the application was filed on 15.3.2021. The grievance of the petitioner is that the same is not being **WP(C) NO. 14794 OF 2021** **7** numbered as the attachment application and order are not among the case records. Having considered the entire facts, I am of the view that necessary directions can be issued. Resultantly, this writ petition is disposed of directing the respondent to efface the attachment effected over the immovable property having an extent of 4 cents and comprised in Sy. No. 22/11 of Vettom Village which was attached as per orders in I.A.No. 1634 of 2002 in O.S.No.250 of 2002 of the Munsiff Court, Tirur. The respondent shall make necessary changes in the official records. The needful shall be done within a period of one month from the date of production of a copy of this judgment. Sd/- ## **RAJA VIJAYARAGHAVAN V** **JUDGE** NS **WP(C) NO. 14794 OF 2021** **8** ## **APPENDIX OF WP(C) 14794/2021** PETITIONER'S EXHIBITS Exhibit P1 A TRUE COPY OF THE JUDGMENT AND DECREE IN OS NO.250/2002 OF MUNSIFF COURT, TIRUR DATED 4.12.2003 Exhibit P2 A TRUE COPY OF THE EP NO.306/2004 IN OS. NO.250/2002 OF MUNSIFF COURT, TIRUR DATED 16.7.2004 Exhibit P3 A TRUE COPY OF THE ENCUMBRANCE CERTIFICATE ISSUED BY THE RESPONDENT DATED 24.11.2020 Exhibit P4 A TRUE COPY OF THE IA. NO. /2021 IN IA.1634/2002 IN OS NO.250/2002 DATED 15.3.2021 RESPONDENT'S EXHIBITS NIL