Noushad Abbas and Hassan Abbas v. Sub Registrar, Konni and Village Officer, Konni

## **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.1271 OF 2021(H)** ## **PETITIONERS:** |**1**|**NOUSHAD ABBAS,AGED 47 YEARS,S/O ABBAS,**| |---|---| ||**HOUSE NO. 229, JASMI MANZIL, EDATHARA,**| ||**PATHIRIKKAL MURI, KALANJOOR P O, PIN-689694.**| |**2**|**HASSAN ABBAS,AGED 69 YEARS,**| ||**S/O HASSAN RAWTHER, HOUSE NO. 229,**| ||**JASMI MANZIL, EDATHARA, PATHIRIKKAL MURI,**| ||**KALANJOOR P O, PIN-689694.**| **BY ADVS. SRI.REJI GEORGE SRI.N.RAJENDRAN SRI.RAMU RAJENDRAN** ## **RESPONDENTS:** **1 THE SUB REGISTRAR, OFFICE OF THE SUB REGISTRAR, KONNI, KONNI P O, PIN-689691. 2 THE VILLAGE OFFICER, KONNI VILLAGE OFFICE, KONNI P O, PIN-689691.** **R BY SMT VIDHYA A.C- 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.1271 OF 2021(H) ## **JUDGMENT** The petitioners, who are joint owners of a property having an extent of 08.86 Ares in Re-survey Nos.67/16, 67/20 and 67/21 of Konni Village covered by Ext.P4 sale certificate dated 19.06.2010 issued under sub-rule (6) of Rule 9 of the Securities Interest (Enforcement) Rules, 2002 executed by State Bank of Tranvancore, represented by its Authorised Officer, have filed this writ petition under Article 226 of the Constitution of India, seeking a declaration that the attachments effected by the Civil Courts over the property purchased by them as per Ext.P4 sale certificate after the date of mortgages, i.e., 28.09.2004 and 10.05.2005 are invalid. The petitioners have also sought for a writ of mandamus commanding the 1[st] respondent Sub Registrar, Konni and the 2[nd] respondent Village Officer, Konni to efface various attachment orders noted in the records maintained at their respective offices in respect of the property purchased by them as per Ext.P4 sale certificate. 2. On 18.01.2021, when this writ petition came up for admission, the learned Government Pleader was directed to get instructions. -3- WP(C).No.1271 OF 2021(H) 3. Heard the learned counsel for the petitioners and also the learned Government Pleader appearing for the respondents. 4. After the registration of Ext.P4 sale certificate, the petitioners approached the 2[nd] respondent Village Officer for effecting mutation under the Transfer of Registry Rules in their names. However, the 2[nd] respondent refused to effect mutation on the ground that there were several attachments over the property before the sale. In such circumstances, the petitioners along with the State Bank of Travancore, who is the secured creditor, approached this Court by filing W.P. (C).No.37505 of 2010, which was disposed of by Ext.P5 judgment dated 03.01.2011 directing the 2[nd] respondent Village Officer to effect mutation of the property in the name of the petitioners. Thereafter, the 2[nd] petitioner obtained Ext.P6 encumbrance certificate No.2193/2020 dated 05.05.2020 from the 1[st] respondent in respect of the property in question, wherein altogether 24 attachment orders were mentioned. The first attachment made mention in the said encumbrance certificate is one passed by the Sub Court, Pathanamthitta in O.S.No.199/2007 on 24.11.2007, much -4- ## WP(C).No.1271 OF 2021(H) prior to Ext.P4 sale certificate. The State Bank of Travancore had created equitable mortgage of the property in question in its favour on 28.09.2004 and 10.09.2005 as evidenced by Exts.P1 to P3 equitable mortgage registers. Though the petitioners approached the respondents to efface the attachment orders noted in the records kept in their respective offices, they were informed that the said attachment orders cannot be effaced without specific direction from a competent court. Alleging inaction on the part of the respondents in effacing/deleting all the attachments reflected in Ext.P6 encumbrance certificate on the immovable property covered by Ext.P4 sale certificate, the petitioners are before this Court in this writ petition. 5. In **Madhan v. Sub Registrar [2014 (1) KLT 406]** the question that came up for consideration before this Court was whether the attachments effected subsequent to the creation of equitable mortgage will be effaced after the property is purchased by another in a sale conducted by the Recovery Officer of the Debt Recovery Tribunal. This Court held that, preponderance of judicial opinion leads to the irresistible conclusion that the sale of the mortgaged property -5- ## WP(C).No.1271 OF 2021(H) in favour of the petitioner under Ext.P5 sale certificate is free of all encumbrances. The attachments effected subsequent to the mortgage created in favour of the bank do not affect the title and ownership of the petitioner over the subject property. Such attachments have no impact on the sale conducted by the Recovery Officer and the same ceases to have any effect or fall to the ground the moment the sale is confirmed in favour of the petitioner. Therefore, this Court directed the Sub-Registrar and the Village Officer to efface the attachments effected subsequent to the mortgage from the relevant records. 6. In **Keechery Service Co-operative Bank Ltd. v. Sajitha Nizar [2020 (5) KHC 231]** a Division Bench of this Court agreed with the declaration of law in **Madhan** . Paragraphs 6 and 7 of that judgment read thus; “6. The issue was again considered by a Division Bench of this Court in an unreported decision in **Ali Asharaf M.M. & another v. Sub Registrar, Thrissur** [W.A.No.612 of 2015]. That was a case where the appellants/writ petitioners purchased property in question in an auction proceedings conducted under the SARFAESI Act. The appellants - petitioners were constrained to approach this Court by filing W.P. -6- WP(C).No.1271 OF 2021(H) (C)No.23435 of 2014, from which the said appeal arose, on account of refusal on the part of the Village Officer to effect mutation of the property purchased by them in the auction under the SARFAESI Act. The reason for not effecting mutation was an order of attachment effected by Munsiff Court, Thrissur in respect of the same property. The learned Single Judge as per judgment dated 13.10.2014 in W.P. (C)No.23435/2014 directed the writ petitioners to approach Munsiff Court, Thrissur for vacating the order of attachment in respect of the property purchased by them in the auction sale conducted under the SARFAESI Act. The Division Bench took note of the indisputable and undisputed fact that the attachment of the property involved therein was subsequent to the date of mortgage of the said property with the Bank whose Authorised Officer conducted the auction proceedings under the SARFAESI Act. In the said circumstances, the Division Bench, in full agreement with the dictum laid down in **Madhan's case (supra)** , declared that the attachments effected by the Munsiff Court, Thrissur after the date of mortgage are invalid and consequently, directed the Sub Registrar and the Village Officer, concerned to efface the attachments effected after 8.7.2008 that is, the date on which the mortgage of the property was created with the Bank. 7. In the light of the aforesaid declaration of law by this Court the order of dismissal of the petition filed for lifting the attachment ordered under Ext.R7(a) viz., Ext.R7(b) by the Federal Bank would pale into -7- WP(C).No.1271 OF 2021(H) insignificance. We do not find any reason to disagree with the declaration of law in **Madhan's case (supra)** which was virtually affirmed by the Division Bench in **Ali Asharaf's case (supra)** . In the said circumstances and taking note of the fact that the orders of attachment of the property in question were after the creation of equitable mortgage of the same with Federal Bank we do not find any reason to interfere with the impugned judgment passed by the learned Single Judge following the dictum in **Madhan's case (supra)** , carrying the directions to effect mutation of the property as also to efface all encumbrance over the property effected after 27.6.2014, the date on which the property in question was mortgaged with Federal Bank.” (underline supplied) 7. In the instant case, in Ext.P5 judgment, this Court directed the 2[nd] respondent herein to effect mutation of the property covered by Ext.P4 Sale Certificate, in the name of the petitioners. As evident from Exts.P1 to P3 equitable mortgage registers, the State Bank of Travancore had created equitable mortgage of the property in question on 28.09.2004 and 10.09.2005, as evidenced by Exts.P1 to P3 equitable mortgage registers. The attachments recorded in the relevant books as well as Ext.P6 encumbrance certificate are subsequent to the date of mortgage. In such circumstances, -8- WP(C).No.1271 OF 2021(H) the 1[st] respondent Sub Registrar and the 2[nd] respondent Village Officer have to efface/delete all the attachments recorded in the relevant books as well as in Ext.P6 encumbrance certificate on the immovable property covered by Ext.P4 sale certificate. In the result, this writ petition is disposed of by directing the 1[st] respondent Sub Registrar and the 2[nd] respondent Village Officer to efface/delete all the attachments recorded in the relevant books as well as in Ext.P6 encumbrance certificate on the immovable property covered by Ext.P4 sale certificate, within a period of six weeks from the date of receipt of a certified copy of this judgment. No order as to costs. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/04/02 -9- WP(C).No.1271 OF 2021(H) ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE EQUITABLE MORTGAGE REGISTER OF THE PATHANAMTHTTA BRANCH OF THE STATE BANK OF TRAVANCORE EVIDENCING THE DEPOSIT OF SALE DEED NO. 1692/2004 WITH THE BANK ON 28/09/2004. EXHIBIT P2 TRUE COPY OF THE EQUITABLE MORTGAGE REGISTER OF THE PATHANAMTHTTA BRANCH OF THE STATE BANK OF TRAVANCORE EVIDENCING THE DEPOSIT OF SALE DEED NO. 1693/2004 WITH THE BANK ON 28/09/2004. EXHIBIT P3 TRUE COPY OF THE EQUITABLE MORTGAGE REGISTER OF THE PATHANAMTHTTA BRANCH OF THE STATE BANK OF TRAVANCORE EVIDENCING THE DEPOSIT OF SALE DEED NO. 3618/2004 WITH THE BANK ON 10.09.2005.** - **EXHIBIT P4 TRUE COPY OF THE SALE CERTIFICATE DATED 19/06/2010 ISSUED BY THE STATE BANK OF TRAVANCORE TO THE PETITIONERS AND REGISTERED AS DOCUMENT NO.1627/2010 OF KONNI SUB REGISTRY.** **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 03.01.2011 PASSED BY THIS HON'BLE COURT IN WPC NO.37505/2010.** - **EXHIBIT P6 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO. 2193/2020 DATED 05.05.2020 FROM THE KONNI SUB REGISTRY.** **EXHIBIT P7 TRUE COPY OF THE JUDGMENT OF THE DIVISION BENCH DATED 24.07.2015 IN WA NO. 612 OF 2015.**