Union Bank of India Attipra Branch, Thiruvananthapuram v. Sub Registrar, Office of Sub Registrar, Pothencode; Village Officer, Uliyazhathura Village; Muthoott Vehicle Assistant Finance Ltd; M. Gopakumar; K. Sureshkumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY ,THE 24TH DAY OF JANUARY 2019 / 4TH MAGHA, 1940** ## **WP(C).No.30008 of 2016** ## **PETITIONER:** **UNION BANK OF INDIA ATTIPRA BRANCH, ATTIPRA, THIRUVANANTHAPURAM REP. BY ITS BRANCH MANAGER.** **BY ADVS. SRI.A.S.P.KURUP, SC, UBI SRI.SADCHITH.P.KURUP** ## **RESPONDENTS:** |**1**|**THE SUB REGISTRAR**| |---|---| ||**OFFICE OF SUB REGISTRAR**| ||**POTHENCODE,POTHENCODE P.O.,**| ||**THIRUVANANTHAPURAM - 695 584.**| |**2**|**THE VILLAGE OFFICER**| ||**ULIYAZHATHURA VILLAGE, VILLAGE OFFICE,**| ||**POWDIKONAM P.O., THIRUVANANTHAPURAM - 695 587.**| |**3**|**MUTHOOTT VEHICLE ASSISTANT FINANCE LTD**| ||**MUTHOOT CHAMBERS, KURIEN TOWERS,BANERJI ROAD,**| ||**ERNAKULAM.**| |**4**|**M.GOPAKUMAR**| ||**AGED NO KNOWN TO THE PETITIONER,**| ||**S/O. MADHAVAN PILLAI, JAYAN NIVAS,**| ||**KARIYAVATTOM P.O.,**| ||**THIRUVANANTHAPURAM,PIN - 695 581.**| |**5**|**K.SURESHKUMAR**| ||**MURALI BHAVAN, VENCHAVODE,**| ||**SREEKARYAM P.O.,**| ||**THIRUVANANTHAPURAM - 695 017.**| **WP(C).No.30008 of 2016** **2** **6 S.SUGATHAN AGED 57, S/O. SADASIVAN, TC 31287(2), KPRA 77C, THRIKKARTHIKA, MANGULAM LANE, TKD ROAD, PATTOM, THIRUVANANTHAPURAM - 695 004.** **BY ADVS. GOVERNMENT PLEADER SMT.RAHANA.N.S. SMT.M.RAMLATH SRI.AJIT G.ANJARLEKAR SRI.C.S.MANILAL SRI.GOVIND PADMANAABHAN SRI.G.P.SHINOD SRI.K.I.SAGEER SRI.RAM MOHAN.G. SRI.S.NIDHEESH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.30008 of 2016** **3** **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner, a public sector Bank, has approached this Court seeking to declare that respondents 3 and 4 do not have any right to proceed against the property covered by Ext.P5 on the basis of their claim against the 5[th] respondent and to direct the 1[st] respondent to remove the entries of attachment made in Ext.P6 on 24.12.2009, 03.11.2010 and 16.07.2015. 2. The petitioner-Bank contends that it has granted a financial facility to one Sasikala, wife of the 5[th] respondent. The loan was secured on a mortgage of an area of 4.05 Ares comprised in re-survey No.400/2/1 of Block 15 of Uliyazhathura village which was owned by the 5[th] respondent. The said Sasikala deposited the documents in respect of the property with the Bank in the year 2007 as is evident from Ext.P2. The loan amount was not promptly repaid. The Bank **WP(C).No.30008 of 2016** **4** took recovery steps and sale of the property was effected. The 6[th] respondent was the successful bidder. A sale certificate was issued to the 6[th] respondent on 11.04.2014. The issuance of sale certificate was also communicated to the Sub Registrar concerned. However, when the petitioner registered the sale certificate and obtained an encumbrance certificate, it has been found that there were certain attachments over the mortgaged property. Ext.P6 encumbrance certificate shows other three attachments over the property. The petitioner requested the 1[st] respondent to efface the entries of other attachments in Ext.P6 since all the attachments were subsequent to the mortgage created by the 5[th] respondent. Upon the sale of the secured assets, the attachment has to be effaced, contends the petitioner. 3. The 1[st] respondent filed a counter affidavit in the matter. According to the 1[st] respondent, before the registration of sale certificate issued by the petitioner, two attachment orders already prevailed over the property. These attachment orders were passed by the District Court, Ernakulam and **WP(C).No.30008 of 2016** **5** Additional Sub Court, Thiruvananthapuram. According to the 1[st] respondent, any charge made over an immovable property by a court order cannot be effaced without filing another order made by the competent authorities specified in the Act. According to the 1[st] respondent, the registering officer has no authority whatsoever to make entries in Index II maintained as per Section 55(3) of the Registration Act. The registering authority has no jurisdiction to efface the charge made over the immovable property by virtue of a court order, contends the 1[st] respondent. 4. The 3[rd] respondent appeared in the case and stated that there were two attachments mentioned in Ext.P6, which were in favour of the 3[rd] respondent. His claim has been already realised and the attachment in favour of the 3[rd] respondent in Ext.P6 need not be retained. The 4[th] respondent appeared in the case and submitted that the attachment ordered by the II Additional Sub Court, Thiruvananthapuram is operating in his favour and the suit has been decreed in favour of the 4[th] respondent and he could not realise the decreed **WP(C).No.30008 of 2016** **6** amount. The 4[th] respondent therefore, opposes the prayers made by the petitioner. 5. I have considered the pleadings in the matter and heard the counsel appearing on either side. 6. While hearing the matter, it has been brought to my notice that this Court has already dealt with a similar matter in _**Madhan S. v. Sub Registrar, Kollam and others** [2014 (1) KLT 406]_ . In the said decision, the issue relating to raising of attachment subsequent to the proceedings instituted under the DRT Act was considered and this Court held as follows:- _“The preponderance of judicial opinion leads to the irresistible conclusion that the sale of the mortgaged property in favour of the petitioner under Ext.P5 sale certificate under the Act 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 under_ **WP(C).No.30008 of 2016** **7** _the Act and the same ceases to have any effect or fall to the ground the moment the sale is confirmed in favour of the petitioner. The declaration so sought by the petitioner is therefore granted and I further direct the Sub-Registrar and the Village Officer to efface the attachments effected subsequent to the mortgage from the relevant records. Otherwise those attachments would remain as a permanent taboo prejudicially affecting the marketability and title to the property even though they ceased to have any legal efficacy. The needful in relation to the property bought by the petitioner shall be done within a period of two months from the date of receipt of a copy of this judgment.”_ The above judgment reported in _2014 (1) KLT 406_ squarely applies to the above writ petition. The deposit of title deed by the 5[th] respondent to the petitioner-Bank, was made prior to the attachment orders made by civil courts. Therefore, the attachment orders passed subsequently cannot impart the sale. **WP(C).No.30008 of 2016** **8** 7. In the circumstances, I find that the legal position is clear as laid down in the said judgment. Therefore, if the petitioner makes an application for lifting up the attachment mentioned in Ext.P6 along with the certified copy of the judgment in this writ petition, the 1[st] respondent shall consider such application in the light of the law laid down by this Court in _**Madhan S. v. Sub Registrar, Kollam and others** [2014 (1) KLT 406]_ , within a period of two months from the date of receipt of a copy of this judgment, if necessary, after hearing respondents 4 and 6 also. Writ petition is disposed of as above. Sd/- **N. NAGARESH, JUDGE** aks/24.01.2019 **WP(C).No.30008 of 2016** **9** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**P1**|**XEROX COPY OF DOCUMENT NO. 2245/2007**| |---|---| ||**DATED 16.7.2007 IN THE NAME OF 5TH**| ||**RESPONDENT.**| |**P2**|**XEROX COPY OF LETTER DATED 12.10.2007**| ||**ISSUED BY THE PETITIONER TO 5TH**| ||**RESPONDENT.**| |**P3**|**XEROX COPY OF SALE NOTICE DATED**| ||**31.1.2014 PUBLISHED BY THE PETITIONER.**| |**P4**|**XEROX COPY OF SALE CERTIFICATE DATED**| ||**11.4.2014 ISSUED BY PETITIONER TO 6TH**| ||**RESPONDENT.**| |**P5**|**XEROX COPY OF SALE CERTIFICATE**| ||**NO.951/2015 DATED 17.3.2015 REGISTERED**| ||**WITH 1ST RESPONDENT.**| |**P6**|**XEROX COPY OF ENCUMBRANCE CERTIFICATE**| ||**DATED 24.6.2016 ISSUED BY 1ST**| ||**RSPONDENT.**|