Point of Law : Section 83 provides for an order of attachment of any property, movable or immovable belonging to proclaimed person being issued.

JUDGMENT :

This writ petition is filed seeking the following reliefs :-

“(i) Issue a writ, order or direction in the nature of mandamus, directing the 1st respondent to register the sale deed produced by the petitioner, in favour of Mr. Jose Thullakulathil Simon, S/o. Thullakulathil Daniel Simon, Thullakulathil House, Kulananda, Pathanamthitta District, by not insisting the endorsement regarding the “attachment” in the document to be registered.

(ii) Issue a writ, order, or direction in the nature of mandamus, directing the 6th respondent to efface/ expunge all attachments effected after 5-3-2014 in the mortgaged property, from the Tandaper Register, as the attachment itself is illegal.

(iii) Declare that the insistence of endorsement regarding the “attachment” in the document to be registered is illegal and arbitrary, as the “attachment” was ordered by the Judicial First Class Magistrate Court-I, Peermade, after the creation of mortgage and that the criminal proceedings against the accused in the said case who is the borrower with the bank has been abated by his death on 4-6-2021.”

2. Heard the learned counsel for the petitioner and the learned Government Pleader appearing for respondents 1 and 4 to 6. Though notice had been taken out to respondents 2 and 3 by paper publication which was duly published, there is no appearance for the said respondents.

3. The learned counsel for the petitioner submits that the 2nd respondent Company had availed multiple loans from the petitioner Bank mortgaging 66 cents of property in Kozhencherry Village. The property belonged to Sri. Biju Mathew Abraham, who was one of the Directors of the 2nd respondent Company. The mortgage was created on 5.3.2014. Since the borrowers defaulted the payment of loan, the Bank initiated proceedings under the SARFAESI Act. Biju Mathew Abraham, who was the owner of the mortgaged property passed away on 4-6-2021. The mortgaged property was sold in public auction on 22.7.2022. However, the Bank could not register the sale certificate in favour of the auction purchaser since the 1st respondent directed the petitioner to produce materials to show that the attachment ordered by the Judicial First Class Magistrate Court-I, Peermade is lifted. It is submitted by the learned counsel for the petitioner that the petitioner had made necessary enquiries with the Judicial First Class Magistrate Court-I, Peermade, but it was found that there was no legal or proper order of attachment passed by the said court and that therefore, there was no attachment available to be lifted for execution of the sale certificate. It is submitted that the mortgage having been created on 5.3.2014 and since the owner of the property was booked for offences under the Kerala Preservation of Trees Act only on 22.10.2015, what could have been attached by the Magistrate Court, if at all there was an order of attachment, was only the surviving right of the owner of the property for redemption of the property from mortgage already executed. It is further submitted that as a matter of fact, there was no order of attachment issued by the Magistrate Court in terms of Section 83 of the Code of Criminal Procedure and that only a proclamation under Section 82 had, as a matter of fact, been issued in respect of the property. It is, therefore, contended that there was absolutely no legal impediment to the registration of the sale certificate executed by the Bank after the property was sold in public auction.

4. The petitioner had taken notice to respondents 2 and 3 by paper publication and the notice was duly published in Bangalore and Chandigarh edition of Indian Express, but there is no appearance for the parties in spite of notice having been duly served.

5. The learned counsel for the petitioner has also made available a copy of the order sheet from 27.9.2016 to 27.2.2023 in C.C. No.364/2016 in the Court of the Judicial First Class Magistrate-I, Peermade. It is submitted on the basis of the said order sheet, which