CHACKRAMAKKIL INASU JOY v. THE SUB REGISTRAR, CHERPU

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 WP(C) No.41047 of 2023 4 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.” Petitioner also relies on the judgment in Keechery Service Co-operative Bank Ltd. v. Sajitha Nizar, 2020 (6) KLT 68 wherein the attachment was subsequent to the mortgage and therefore a direction was issued to efface the encumbrance of the property with a consequential direction to effect mutation of the property. Paragraphs 6 and 7 of the judgment read as follows: “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. (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 WP(C) No.41047 of 2023 5 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 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.”

3. Heard the learned Government Pleader also. Though notice was issued to the respondents 3 and 4, there is no appearance on behalf of them. It is an admitted fact that the mortgage was on 05.10.2010 and the attachment of the property was on 26.09.2017 as per order in I.A.No.3352 WP(C) No.41047 of 2023 6 of 2017 in O.S.No.186 of 2017 of the Sub Court, Thrissur. In view of the fact that the attachment was subsequent to the mortgage effected, I am of the view that the issue raised by the petitioner is covered in his favour as per the declaration of law in Madhan S. and Keechery Service Co- operative Bank Ltd.’s cases cited supra. Therefore Exts.P5 and P6 orders are set aside with a consequential direction to the 1st respondent to efface/expunge the attachment effected on 26.09.2017 in the mortgaged property from book no.1, which is maintained as per Section 51 of the Registration Act, 1908 and issue an encumbrance certificate to the petitioner without showing the orders of attachment dated 26.09.2017 and also for a consequential direction to the 2nd respondent to efface/expunge the attachment effected on 26.09.2017 from the records of the Village Office and to mutate the property in favour of the petitioner and also to accept land tax in respect of the property he purchased as per Ext.P4 sale deed, within a period of 45 days from the date of receipt of a copy of the judgment. With the abovesaid directions the writ petition is disposed of. VIJU ABRAHAM Sd/- JUDGE WP(C) No.41047 of 2023 7 APPENDIX OF WP(C) 41047/2023 PETITIONER EXHIBITS Exhibit -P1 Exhibit -P2 Exhibit -P3 Exhibit -P4 Exhibit-P5 Exhibit -P6 Exhibit-P7 Exhibit-P8 TRUE COPY OF THE AGREEMENT DATED 17-12- 2016 EXECUTED BY THE 3RD RESPONDENT IN FAVOUR OF STATE BANK OF INDIA. TRUE COPY OF THE LETTER OF CONFIRMATION DATED 18-12-2016 SEND BY THE 3RD RESPONDENT TO STATE BANK OF INDIA. TRUE COPY OF THE SALE NOTICE DATED 16- 8-2022 ISSUED BY STATE BANK OF INDIA. TRUE COPY OF THE SALE DEED DATED 10-2- 2023 EXECUTED BY THE CHIEF MANAGER, STATE BANK OF INDIA IN FAVOUR OF THE PETITIONER. TRUE COPY OF THE ORDER/COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. TRUE COPY OF THE COMMUNICATION/ORDER DATED 18-11-2023 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 25-8-2023 ISSUED TO THE STATE BANK OF INDIA FROM THE OFFICE OF 1ST RESPONDENT. TRUE COPY OF THE JUDGMENT DATED 26-2- 2020 IN O.S.NO.186/2017 OF THE SUB COURT, THRISSUR.