Asha Girish Shenoy v. Sub Registrar, Edappally, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942** ## **WP(C).No.1805 OF 2021(A)** ## **PETITIONER :** **ASHA GIRISH SHENOY AGED 45 YEARS D/O.LATE MRS KAMALAMMA, SHANBAUG AMRUT NAGAR GOGOL FATORDA, MARGAO, GOA - 403 602, PRESENTLY RESIDING AT PO BOX NO.103666, DUBAI, UNITED ARAB EMIRATES.** **BY ADVS. SMT.M.SANTHI (K/868/2011) SRI.G.RANJU MOHAN** ## **RESPONDENT :** **THE SUB REGISTRAR SUB REGISTRAR OFFICE, EDAPPALLY, ERNAKULAM - 682 024.** **R BY SRI SUNIL NATH N.B- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- WP(C).No.1805 OF 2021(A) ## **JUDGMENT** The petitioner's late mother was the owner of a property having an extent of 8.105 Ares comprised in Re-survey No.17/2 (Survey No.104/2/B) in Block No.238 of Edappally North Village. The petitioner's father Mr.Gopinath Narayanan was the original owner of that property. He transferred the ownership of the property in the name of petitioner's mother, as per the registered settlement deed No.3359/2004 of Edappally Sub Registry. Thereafter, there occurred some matrimonial disputes and the petitioner's father filed O.P.No.68 of 2015 before the Family Court Ernakulam, in which he obtained an order of attachment in I.A.No.213 of 2015. The said order of attachment was communicated to the respondent Sub Registrar, which was registered at the Sub Registrar Office, Edappally, on 05.03.2015. While so, the petitioner's mother was diagnosed with Cancer and she passed away on 06.02.2018, as evident from Ext.P2 death certificate dated 07.02.2018 issued from the Consulate General of India, Dubai. Ext.P3 is the legal heirship certificate of late Kamalamma, as per which, the legal heirs are her husband and three children. By Ext.P1 judgment dated -3- WP(C).No.1805 OF 2021(A) 09.01.2018, O.P.No.68 of 2015 filed by the petitioner's father was dismissed as withdrawn. 2. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondent to quash Ext.P7 communication dated 23.11.2020. The petitioner has also sought for a writ of mandamus commanding the respondent to consider Ext.P5 representation afresh and remove the injunction/attachment effected on the immovable property having an extent of 8.105 Ares comprised in Re-survey No.17/2 (Survey No.104/2/B) in Block No.238 of the Edappally North Village, as per the order in I.A.No.213 of 2015 in O.P.No.68/2015 on the files of the Family Court, Ernakulam, as noted in Ext.P4 encumbrance certificate, in the light of Ext.P1 judgment dated 09.01.2018 in O.P.No.68 of 2015. 3. On 22.01.2021, when this writ petition came up for admission, the learned Government Pleader sought time to get instructions. 4. On 01.02.2021, the Registry was directed to obtain a report from the Family Court, Ernakulam as to whether any -4- ## WP(C).No.1805 OF 2021(A) application is pending in O.P.No.68 of 2015 seeking an order to review or recall the judgment dated 09.01.2018, whereby that Original Petition was dismissed as withdrawn. 5. Based on the aforesaid order, the Registry has obtained a report dated 02.02.2021 from the Family Court, Ernakulam, wherein it is stated that no application is seen filed or pending in O.P.No.68 of 2015 seeking an order to review or recall Ext.P1 judgment dated 09.01.2018. 6. Heard the learned counsel for the petitioner and also the learned Government Pleader for the respondent. 7. 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 -5- WP(C).No.1805 OF 2021(A) ## jurisdiction of the Court, the Court may direct the defendant, 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." 8. In **Sathish N. Rajan v. District Collector, Ernakulam and others [2019 (2) KHC 634]** this Court held 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. Therefore, to -6- ## WP(C).No.1805 OF 2021(A) 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. 9. 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.- 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." 10. Rule 185 of the Kerala Civil Rules of Practice, 1971 deals with 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, -7- WP(C).No.1805 OF 2021(A) 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." 11. In **Sathish N. Rajan** this Court held that, under Order 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. A conjoint -8- ## WP(C).No.1805 OF 2021(A) 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. 12. In the instant case, the petitioner's father filed O.P.No.68 of 2015 before the Family Court, Ernakulam, in which he obtained an order of attachment in I.A.No.213 of 2015, which was communicated to the respondent Sub Registrar and registered on 05.03.2015. Later, that suit was dismissed as withdrawn as per Ext.P1 judgment dated 09.01.2018. However, the Family Court failed to pass orders under Order XXXVIII Rule 9 of the Code of Civil Procedure for -9- WP(C).No.1805 OF 2021(A) withdrawing the order of attachment when O.P.No.68 of 2015 was dismissed as withdrawn and to communicate the same to the 1[st] respondent Sub Registrar. In such circumstances, this writ petition is disposed of by setting aside Ext.P7 communication dated 23.11.2020 issued by the respondent Sub Registrar and by directing the said respondent to efface the attachment in I.A.No.213 of 2015 in O.P.No.68 of 2015 on the file of the Family Court, Ernakulam, in the relevant books as well as Ext.P4 encumbrance certificate on the immovable property having an extent of 8.105 Ares comprised in Re-survey No.17/2 (Survey No.104/2/B) in Block No.238 of Edappally North Village, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. Sd/- ## **ANIL K.NARENDRAN, JUDGE** AV/04/02 -10- WP(C).No.1805 OF 2021(A) ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE JUDGMENT DATED 9/1/2018 IN O.P.NO.68/2015 ON THE FILES OF THE LEARNED FAMILY COURT, ERNAKULAM.** **EXHIBIT P2** - **TRUE COPY OF THE DEATH CERTIFICATE NO.DUBA/DC/EMER/2018 DATED 07/02/2018 ISSUED FROM THE CONSULATE GENERAL OF INDIA, DUBAI (U.A.E.).** - **EXHIBIT P3 TRUE COPY OF THE LEGAL HEIRSHIP CERTIFICATE NO.A5-16860/19/K.DIS. DATED 28/01/2020 ISSUED BY THE TAHSILDAR, KANAYANNUR TALUK.** - **EXHIBIT P4 TRUE COPY OF THE CERTIFICATE OF ENCUMBRANCE OF PROPERTY BEARING CERTIFICATE NO.375/2020 DATED 10/01/2020 ISSUED FROM THE EDAPPALLY SUB REGISTRY.** - **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE RESPONDENT ALONG WITH ITS POSTAL RECEIPT DATED NIL.** - **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE VILLAGE OFFICER, EDAPPALLY NORTH VILLAGE, DATED NIL.** **EXHIBIT P7 TRUE COPY OF THE LETTER NO.C165/2020 DATED 23/11/2020 ISSUED BY THE RESPONDENT.**