BIJU P.S v. The Sub Registrar, Mullassery; The Village Officer, Kundaliyur; Muhammed Shihab; Jaseena Abdulrahiman

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 ``` ## **`WP(C) NO. 17125 OF 2023`** ## **`PETITIONER:`** ``` BIJU.P.S AGED 51 YEARS S/O SREENIVASAN, PANDARIKKAL HOUSE, PAVARATTY P.O., THRISSUR DISTRICT-, PIN - 680507 BY ADVS. M.PROMODH KUMAR MAYA CHANDRAN 1THE SUB REGISTRAR OFFICE OF THE SUB REGISTRAR, MULLASSERY P.O., THRISSUR - 680509 2THE VILLAGE OFFICER OFFICE OF THE VILLAGE OFFICE, KUNDALIYUR P.O., THRISSUR - 680616 3MUHAMMED SHIHAB AGED 38 YEARS S/O KADER,NALAKATH PUTHENPURAYIL, VENKITANGU VILLAGE, PADOOR P.O., THRISSUR DISTRICT, PIN - 680524 4JASEENA ABDULRAHIMAN W/O MUHAMMED SHIHAB, NALAKATH PUTHENPURAYIL, VENKITANGU VILLAGE, PADOOR P.O., THRISSUR DISTRICT., PIN - 680524 GOVERNMENT PLEADER SMT.DEEPA V ``` ## **`RESPONDENTS:`** ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.12.2023, THE COURT ON 05.02.2024 DELIVERED THE FOLLOWING: ``` **W.P (C) No.17125 of 2023** **:2:** ## **JUDGMENT** According to the petitioner, the 3[rd] respondent had borrowed Rs.23,00,000/- from the petitioner for his share trading business. Due to the failure on the part of the 3[rd] respondent to repay the amount as agreed, the petitioner approached the Taluk Legal Service Committee, Chavakkad and based on a compromise between the parties, Ext. P1 award dated 14.05.2015 was passed in the Pre-litigation petition P.L.P. No. 531/2015. As per Ext.P1, the 3[rd] respondent was required to repay the amount along with damages. However, the 3[rd] respondent failed to fulfill the said obligation and the petitioner filed E.P. No. 55/2015 before the Sub Court Thrissur for execution of Ext. P1 award. Consequently, the Court conducted an auction and the petitioner purchased the property. 2. The petitioner states that the 3[rd] respondent attempted to stall the confirmation of sale by all means, and various Execution Appeals and Execution First Appeal **W.P (C) No.17125 of 2023** **:3:** were filed at the instance of the 3[rd ] respondent. However, all the appeals were dismissed by the Courts and the executing Court issued Ext. P3 sale certificate dated 30.09.2016 to the petitioner. Accordingly, the property was delivered to the petitioner. However, it later came to the notice of the petitioner that the 3[rd] respondent had mortgaged the property with M/s HDFC Limited. The petitioner states that this fact was suppressed by the 3[rd] respondent while entering into the agreement leading to Ext. P1 award. 3. Meanwhile, M/s HDFC Limited filed W.P.(C) No. 7244/2020 claiming that they had taken possession of the property under the SARFAESI Act, conducted an auction, and issued a sale certificate in favour of one Sulochana Chinnappan, but, the Sub Registrar refused to register the property due to the previous registration of the Ext. P3 Sale Certificate issued by the executing Court to the petitioner. The petitioner, the 3[rd ] respondent, his wife, the **W.P (C) No.17125 of 2023** **:4:** 4[th] respondent and Smt. Sulochana Chinnappan, the auction purchaser, were parties to the said writ petition. During the pendency of the said writ petition, a settlement was arrived at between the parties and the petitioner agreed to pay Rs.25,00,000/- to Sulochana Chinnappan, and all claims including that of the HDFC Bank were settled and as a result, this Court set aside the sale certificate issued to Smt. Sulochana Chinnappan. 4. Later, the petitioner decided to sell the property to overcome his financial constraints. However, upon scrutinizing the encumbrance certificate, the petitioner noticed that the 4[th] respondent, the wife of the 3rd respondent had obtained an attachment over the property as per the order in I.A. No.1770/2015 in O.P. No. 677/2015 of the Family Court, Thrissur. When the petitioner approached the Sub Registrar to register the property covered by Ext.P3, the 1[st ] respondent insisted on obtaining a Record of Right (ROR) certificate from the 2[nd] respondent **W.P (C) No.17125 of 2023** **:5:** Village Officer. However, the 2[nd ] respondent refused to issue ROR certificate since the encumbrance certificate carries the endorsement of the attachment obtained by the 4[th] respondent. The petitioner states that, O.P. No. 677/2015 in which the 4[th] respondent obtained the attachment was later allowed, but the decree/order was not executed which shows a collusive attempt to prevent the petitioner from enjoying the property. The petitioner contends that an attachment under Order 38 Rule 5 of the Code of Civil Procedure is not an encumbrance over the property and that a charge created under Section 100 of the Transfer of Property Act, 1882 gets precedence over the attachment. Accordingly, the petitioner has filed this writ petition for a declaration that the order of attachment obtained by the 4[th] respondent against the 3[rd] respondent has no consequence over the property covered by Ext.P3 sale certificate and for direction to the 1[st] respondent to register the said property without insisting for ROR certificate. **W.P (C) No.17125 of 2023** **:6:** 5. Heard the learned counsel for the petitioner and the learned Government Pleader. Though notice was taken out to respondents 3 and 4 by paper publication, there is no appearance. 6. In the Pre-litigation petition before the Taluk Legal Services Committee, Chavakkad, based on a compromise between the petitioner and the 3[rd] respondent, Ext. P1 award was passed. The petitioner purchased the said property in the auction conducted in execution of the said award. The subject property was by the time mortgaged by the 3[rd] respondent with HDFC on 16.01.2014 as can be seen from the appendix to Ext. P5 judgment. When the 3[rd] respondent defaulted loan repayment, HDFC initiated proceedings against the mortgaged property/secured asset under the SARFAESI Act and the property was sold in auction to Smt. Sulochana Chinnappan. The 3[rd] respondent lost his right to redeem the property in terms of Section 13 (8) of the SARFAESI **W.P (C) No.17125 of 2023** **:7:** Act. When the Sub Registrar refused to register the said sale certificate issued to Smt. Sulochana Chinnappan due to registration of Ext. P3 Sale Certificate issued by the executing Court to the petitioner, HDFC approached this Court and during the pendency of the writ petition, a settlement was arrived at between the parties and the petitioner agreed to pay Rs.25,00,000/- to Sulochana Chinnappan, and all claims including that of the HDFC Bank were settled and this Court set aside the sale certificate issued to Smt. Sulochana Chinnappan. Respondents 3 and 4 herein were also parties to the said writ petition and the proceedings under the SARFAESI Act were also not objected to. The attachment in O.P. No. 677/2015 of the Family Court in favour of the 4[th] respondent was subsequent to the creation of equitable mortgage by the 3[rd] respondent in favour of HDFC. The sale certificate issued pursuant to the proceedings under the SARFAESI Act was set aside by this Court as per Ext. P5 judgment since it was **W.P (C) No.17125 of 2023** **:8:** agreed by the parties that the petitioner would pay Rs.25,00,000/- to the auction purchaser. Ext. P5 judgment is not hitherto challenged by respondents 3 and 4. As rightly contended by the learned counsel for the petitioner, an attachment under Order 38 Rule 5 of the Code of Civil Procedure is not an encumbrance over the property. It neither creates any title nor any encumbrance. In **Nirmala** _**v**_ **. Sundaresan (Deceased) [2023 (5) KHC 28]** , a Division Bench of this Court held that attachments, by themselves, do not amount to creation of charges and are therefore not encumbrances. In **Secretary, Keechery** _**v**_ **Service Co-operative Bank Ltd. . Sajitha Nizar alias Sajitha P.M. and Others [2020 (5) KHC 231: ILR 2020 (4) Ker.249: 2020(6) KLT 68: 2020(4) KLJ 970]** , the Division Bench held that attachment effected after creation of mortgage of the property would stand effaced. The attachment from the Family Court has been obtained by the 4[th] respondent after the 3[rd] respondent **W.P (C) No.17125 of 2023** **:9:** created charge over the property as per Ext. P1 award. Therefore, the attachment in O.P. No. 677/2015 of the Family Court in favour of the 4[th] respondent cannot have any consequence over the 4.553 ares of land in Survey No. 114/5 of Kundaliyur Village. It is so declared. 7. This Court, in **Synudheen** _**v**_ **. State of Kerala [2013 (1) KLT 221 (2013 (1) KHC 437 : 2013 (1) KLJ 453],** held that since the provisions of the Registration Act and the Rules have not been amended so as to incorporate a mandatory condition insisting for production of ROR certificate before the deeds could be registered, the registration officials cannot refuse to register the same on the mere ground that the petitioner has not produced the ROR certificate in respect of the property concerned. In **Jacob P.C.** _**v**_ **. Village Officer, Ernakulam and another [2020 (4) KHC 167: 2020 (4) KLT 271]** , this Court, following the dictum in **Synudheen** (supra), held that the parties cannot be compelled to obtain ROR as a pre- **W.P (C) No.17125 of 2023** **:10:** condition for registration and it can only be optional, or else, it will interfere with the right of a property owner to transfer his property in terms of his requirement. In the light of the law laid down by this Court in **Synudheen** and **Jacob** (supra), it is ordered that the 1[st] respondent cannot refuse registration of the document pertaining to 4.553 Ares of land in Survey No. 114/5 of Kundaliyur Village on the ground that the petitioner has not produced the ROR certificate, if it is otherwise in order. It is also made clear that this judgment will not impede the right of the 4[th] respondent in seeking any other remedy, as may be available in law, against the 3[rd] respondent. The writ petition is disposed of. Sd/- **MURALI PURUSHOTHAMAN JUDGE** spc/ **W.P (C) No.17125 of 2023** **:11:** ## **`APPENDIX`** ``` PETITIONER EXHIBITS Exhibit P1 ``` ``` TRUE COPY OF THE AWARD PASSED BY THE TALUK LEGAL SERVICE COMMITTEE, CHAVAKKAD IN P.L.P.NO.531/2015, DATED 14-05-2015 ``` ``` Exhibit P2TRUECOPYOFTHEJUDGMENTIN EX.F.A.NO.5/2016, DATED 02-02-2016. ``` ``` Exhibit P3TRUE COPY OF THE SALE CERTIFICATE DATED 30-9-2016 ISSUED BY THE EXECUTING COURT. Exhibit P4TRUE COPY OF DELIVERY REPORT OF THE AMIN OF THE SUB COURT, THRISSUR, DATED 17-8-17. Exhibit P5TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.7244/2020 DATED 04-03-2022 Exhibit P6TRUE COPY OF THE LETTER ISSUED BY THE HDFC LTD., DATED 28-02-2023. Exhibit P7TRUE COPY OF THE ENCUMBRANCE CERTIFICATE OF THE PROPERTY DATED 03-03-2023. Document 1Notice published in Madhyamam Daily dated:22/10/2023 having circulation in Thrissur District. Exhibit P8TRUE COPY OF THE LOAN AGREEMENT EXECUTED BY THE 3RD AND 4TH RESPONDENTS ALONG WITH OTHERS IN FAVOR OF M/S HDFC LTD DATED 17.01.2014. ```