P. M. Paul v. State of Kerala & The Sub Registrar, Kattappana; Muthoot Bankers (Addl.R3)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** **TUESDAY, THE 3RD DAY OF JANUARY 2012/13TH PAUSHA 1933** ## **WPC.No. 5737 of 2011 (N)** **---------------------------------------** ## **PETITIONER(S)** - **-----------------------** **1 P.M.PAUL, AGED 56 YEARS, S/O.P.P.MATHAI, PULIKKATHUNDIYIL HOUSE, PUTTADI P.O., VANDANMEDU, IDUKKI DISTRICT.** **BY ADV.SRI.M.RAMESH CHANDER SMT.K.A.SANJEETHA** **RESPONDENT(S)** **1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY,GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM - PIN-695 001.** **2 THE SUB REGISTRAR, OFFICE OF THE SUB REGISTRAR,KATTAPPANA, IDUKKI DISTRICT -PIN- 685 508.** ## ***ADDL.R3 IMPLEADED** - ***R3: M/S. MUTHOOT BANKERS(THIRUVALLA), 26/227 (4),PANICKERS BUILDING, M.G.RAOD, THIRUVALLA. REPRESENTED BY ITS PARTNER SRI.THOMAS GEORGE MUTHOOT.** - **IS IMPLEADED AS ADDL.R3 AS PER ORDER DATED 07/04/2011 IN I.A.NO.6552/11** **R1 & R2 BY GOVERNMENT PLEADER SRI.JOSEPH GEORGE R3 BY ADV. SRI.MILLU DANDAPANI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-12-2011, THE COURT ON 03-01-2012 DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.5737/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE TAX RECEIPT ISSUED BY ANAKKARA VILLAGE OFFICE DATED 6/1/2011.** - **P2 COPY OF THE TAX RECEIPT ISSUED BY VANDANMEDU GRAMA PANCHAYAT DATED 5/1/2011.** - **P3 COPY OF THE ASSIGNMENT DEED EXECUTED BY THE PETITIONER DATED 7/1/2011.** - **P4 COPY OF THE ORDER IN O.S.NO.462 OF 2003 OF SUB COURT, ERNAKULAM DATED 17/2/2006.** - **P5 COPY OF THE ORDER IN O.S.NO.462 OF 2003 OF SUB COURT, ERNAKULAM DATED 20/2/2006.** - **P6 COPY OF THE ORDER IN I.A.NO.2175 OF 2006 IN FAO 180 OF 2006 DATED 7/8/2006.** - **P7 COPY OF THE ENCUMBRANCE CERTIFICATE.** ## **RESPONDENT'S EXHIBITS:** **R3(A) COPY OF THE ENCUMBRANCE CERTIFICATE NO.8470/2005 DATED 09/11/2005 IS RESPECT OF THE PROPERTIES OF THE PETITIONER.** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** ## **ANTONY DOMINIC, J.** ``````````````````````````````````````````````````````````` W.P.(C) No. 5737 of 2011 ``````````````````````````````````````````````````````````` Dated this the 3[rd] day of January, 2012 ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Petitioner is the Managing Partner of High Range Tea Factory, which owns properties comprised in Sy.No.17/1 and R.S.Nos.358/5 and 358/6 of Udumbanchola Taluk. In his capacity as the Managing Partner, petitioner executed Ext.P3 sale deed, conveying the aforesaid properties in favour of Smt.Sudhamani Amma, W/o. K.P. Prabhakaran for a total consideration of Rs.30.85 lakhs. From the counter affidavit filed by the respondents it is seen that the petitioner presented the sale deed before the 2[nd] respondent on 17.01.2011 for registration. According to the 2[nd] respondent on verification of the documents with office records, it was found that in I.A.No.5266/2004 in O.S.No.462/2002 on the files of the Sub Court, Ernakulam and in I.A.No.373/2009 in O.S.No.58/2009 on the files of the Sub Court, Kattappana, the properties were attached and that no records were produced to show that the attachments were vacated by the respective courts. 2. In so far as O.S.No.58/2009 on the file of the Sub Court, Kattappana is concerned, in paragraph 8 of the writ petition, petitioner W.P.(C) No.5737/2011 : 2 : has averred that the dispute has been settled between the parties. In view of this statement, issues arising in the context of the attachment ordered by the Sub Court, Kattappana are not examined in this judgment and it is clarified that the findings in this judgment shall not be to the prejudice of the parties in that suit and that for claiming the benefit of this judgment, the petitioner shall produce before the 2[nd] respondent, the order passed by the Court vacating the attachment. 3. In so far as O.S.No.462/2002 on the file of the Sub Court, Ernakulam is concerned, that is a suit filed by the 3[rd] respondent herein in which the petitioner is the 3[rd] defendant. By order in I.A.No.5266/07, scheduled property has been attached. However, petitioner says that as early as on 17.02.2006 the Sub Court, Ernakulam passed Ext.P4 order, holding that no part of the cause of action in respect of the claim based upon which the suit has been filed has arisen within the limits of the court and therefore it had no jurisdiction to entertain the suit. It is also stated that the 3[rd] respondent did not make any application under Order VII Rule 10A of CPC and therefore the Sub Court passed Ext.P5 judgment dated 20.02.2006, returning the plaint without passing any direction under order VII Rule 10A to present the plaint before the proper court. W.P.(C) No.5737/2011 : 3 : 4. It is stated that aggrieved by Ext.P4, the 3[rd] respondent filed FAO No.180/2006 before this Court and in I.A.No.2175 of 2006, this court passed Ext.P6 order dated 07.08.2006, staying Ext.P4 order and all further proceedings in the suit, pending disposal of the appeal. It is also the undisputed case of the parties that subsequently the order was extended until further orders. Contention raised is that once the trial court has passed Ext.P4 and P5 order and judgment returning the plaint, there is nothing remaining to be done by that Court and that therefore all interlocutory orders, including an order of attachment passed under Order XXXVIII Rules 5 and 6 of CPC, gets vacated. Therefore, when the sale deed was presented for registration on 17.01.2011, there was no attachment in force, and hence, the 2[nd] respondent could not have declined to register the document. According to the petitioner, the fact that Ext.P6 order was passed by this Court did not alter the situation. 5. Counsel also contended that even if the attachment is assumed to be in force, private alienation is not prohibited and that the only consequence is that any private alienation shall be void against all claims enforceable under the attachment. According to him, no provision of the Kerala Registration Act or the Rules entitled to the 2[nd] respondent to decline registration to a document on the ground of the W.P.(C) No.5737/2011 : 4 : pendency of an order of attachment. The learned Government Pleader appearing for respondents 1 and 2 and the counsel appearing for the additional 3[rd] respondent, the plaintiff in O.S.No.462/2003, were also heard. 6. Admittedly, the 3[rd] respondent had filed O.S.No.462/2003 and in I.A.No.5266/2004, by order dated 19.09.2008, the properties in question have been ordered to be attached. It is also the admitted position that by Ext.P4 order dated 17.02.2006 the court held that it had no territorial jurisdiction to entertain the suit and that in the absence of an application made by the 3[rd] respondent under Order VII Rule 10A of the CPC, the trial court passed Exts.P5 judgment on 20[th] February 2006 returning the plaint without any direction under Order VII Rule 10A of the CPC for presentation before the proper court. Subsequently, by Ext.P6 order passed on 7[th] August 2006 in I.A.No.2175/2006 in FAO No.180/2006, this Court granted interim stay of Ext.P4 order and all further proceedings in the suit. This order is still in force. It was subsequent to that, on 17.01.2011, the petitioner presented the original of Ext.P3 sale deed before the 2[nd] respondent for registration. In the light of these facts and the contentions raised, the questions that arise for consideration are mainly whether as on 17.01.2011, when the document was presented for registration, the attachment ordered by the W.P.(C) No.5737/2011 : 5 : Sub Court was still in force and even if attachment was still in force, whether 2[nd] respondent could have refused registration of the sale deed. 7. In so far as the first question is concerned, Order VII Rule 10 of the Code of Civil Procedure provides that subject to the provision of Rule 10A, the plaint shall at any stage of the suit be returned to be represented in the court in which the suit could have been instituted and Rule 10A confers power on the court to fix a date for appearance in court where the plaint is to be filed after its return. Once the plaint has been ordered to be returned there is nothing remaining to be done by the Court, except to make an endorsement as provided in Order VII Rule 10(2) and an order of return of the plaint is final in so far as that court is concerned and such an order is appealable. With the decision of the court that it has no jurisdiction and once an order to return the plaint has been passed, in view of the principles laid down by the apex court in _**Tayabhai M. Bagasarwalla & another v. Hind Rubber Industries Pvt. Ltd.**_ ( **AIR 1997 SC 1240** ), the interim orders passed undoubtedly come to an end. 8. Though the principle of law appears to be so, fact remains that by Ext.P6 order passed by this Court on 07.08.2006, the operation of Ext.P3 order dated 17.02.2006 and all further proceedings in O.S.No.426/2003 on the file of the Sub Court, Ernakulam have been W.P.(C) No.5737/2011 : 6 : stayed. Although this order was passed almost 6 months after Ext.P4 order, the order passed by this Court will revert back to the date of passing Ext.P4 order viz., 17.02.2006 and as a result, it is as if the suit has never been returned by the Sub Court, Ernakulam. If that be the factual position, necessarily, the order of attachment passed by the Sub Court, Ernakulam will also remain in force so long as the stay order passed by this Court is in force. In such a situation it is futile to contend that irrespective of the order passed by this Court once the plaint is ordered to be returned, the attachment order is vacated and that in the absence of an order of attachment in force the 2[nd] respondent should not have declined to register the original of Ext.P3 sale deed. Thus, the first question has to be answered against the petitioner and I do so. 9. In so far as the 2[nd] question is concerned, the attachment in question has been ordered under Order XXXVIII of CPC. Rule 5 empowers the court to call upon the defendant to furnish security for production of property, and Rule 6 provides that where the defendant fails to show cause why he should not furnish security or fails to furnish the security required, the court may order that the property specified or such portion thereof sufficient to satisfy any decree which may be passed in the suit, be attached. The attachment order has to be in Form No.7A of Appendix F to the CPC, which is extracted below for reference: W.P.(C) No.5737/2011 : 7 : ## “ **ATTACHMENT OF IMMOVABLE PROPERTY BEFORE JUDGMENT (Title)** To ……………… Defendant Whereas on the application of the plaintiff in this suit, the Court called upon you, the defendant, to furnish security to fulfil any decree that may be passed against you in the suit or to show cause why you should not furnish such security and you have failed to show cause why you should not furnish such security/ you have failed to furnish the security required within the time fixed by the Court, it is ordered that you, the said ………………… be, and you are hereby prohibited and restrained until the further order of, this Court, from transferring, or charging the properties described in the schedule hereunto annexed, by sale, gift, or otherwise and that all persons be and that they are hereby prohibited, and restrained from receiving the same by purchase, gift or otherwise. Given under my hand and the seal of the Court, this ……………… day ……………. of ……….. 19 ………. ## **Schedule** ## **Judge”** Reading of this order shows that the defendant is prohibited and restrained from transferring or charging the scheduled properties by sale, gift or otherwise and that all persons are also prohibited and restrained from receiving the property by purchase gift or otherwise. 10. Inspite of such a prohibition and restraint of private alienation of property, Section 64 of the CPC provides that private alienation of property after attachment shall be void as against all claims enforceable under the attachment. This section is extracted below for reference: > “ **64. Private alienation of property after attachment to be void.** - (1) Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment. W.P.(C) No.5737/2011 : 8 : (2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment. **Explanation.-** For the purposes of this section, claims enforceable under an attachment include claims for the ratable distribution of assets.” Private alienation means voluntary transfer such as sale, lease, mortgage etc., and not a transfer by operation of law, such as involuntary sale under a decree of court or the enforced execution of conveyance or assignment in obedience to an order of court. The object of Section 64 is to prevent fraud on the decree holders and to secure intact the rights of attaching creditors and those creditors who have obtained decrees and are entitled to satisfaction out of the assets of the judgment debtor. Therefore what is intended to be achieved by this provision is that a private alienation of the property under attachment shall be void as against the claims enforceable under the attachment and the attaching decree holder can proceed against the alienated property in the hands of the alienee and realize the decree debt by bringing the property to sale. 11. A careful reading of the provision indicates that a private transfer or delivery of the property attached is not wholly void. It is void only as against all claims enforceable under the attachment and not otherwise. If the intention of the Legislature had been to declare the transfer to be completely void, the words “as against the claims W.P.(C) No.5737/2011 : 9 : enforceable under the attachment” would not have found a place in the section. Thus section 64, CPC is not meant to deprive the owner of his interest in the property under attachment and the impact of the section is that as against the attaching creditor, a private sale would not be effective, but if the order of attachment is withdrawn or the claim of the creditor is otherwise satisfied, the sale deed executed would convey good title to the transferee. 12. Once the scope of Section 64 CPC is understood, then the question is whether the 2[nd] respondent was justified in refusing to register the sale deed. This issue has to be answered with reference to the provisions of the Registration Act 1908 and Registration Rules, Kerala framed under Section 69(2) of the Act. Rule 191 provides that the reasons for refusal to register a document will usually come under one or more of the heads mentioned in the rule which should invariably be quoted as authority for refusal. None of the heads mentioned in Rule 191 provide that an order of attachment by a civil court can be a ground for declining to register the document. As rightly contended that the counsel for the additional 3[rd] respondent, in the judgment in _**Noble John v. State of Kerala**_ ( **2010 (3) KLT 941)** it has been held by this Court that the grounds mentioned in Rule 191 of the Rules are not exhaustive and that Registrar can, for other valid reasons also, decline to register a W.P.(C) No.5737/2011 : 10 : document. However, such refusal by the Registrar should be for legally tenable reasons, and supported by statutory provisions. In this case, there is no law preventing private alienation of a property under attachment. On the other hand, law only says that such private alienation shall be void as against all claims under the attachment. Therefore, subject to such a consequence, if property can be alienated, the fact that an order of attachment is in force cannot be reason to refuse registration to such a document. Therefore, I am of the view that the 2[nd] respondent has acted illegally in declining to register the original of Ext.P3 sale deed which was presented for registration on 17.01.2011. For the aforesaid reasons, I direct that it would be open to the petitioner to present the original of Ext.P3 sale deed before the 2[nd] respondent for registration along with certified copy of the order passed by the Sub Court, Kattappana, vacating the order of attachment passed in O.S.No.58/2009 and that thereupon, 2[nd] respondent shall accept the document and deal with the same for registration in accordance with law. Writ petition is disposed of as above. ## **(ANTONY DOMINIC, JUDGE)**