An attachment order does not bar the registration of property documents if the underlying suit has been dismissed, emphasizing the need for proper communication of court orders to registration authorities.

JUDGMENT :

(Judgment of the Court was delivered by R.SUBRAMANIAN, J.)

Prayer: Writ Appeal filed under Clause 15 of Letters Patent, to set aside the order dated 06.02.2024 in WP No.2494 of 2024 by allowing this Writ Appeal.

The appellants presented a document of partition for registration on 16.03.2023. The Sub Registrar, Paramathi refused to register the document on the ground that there was an attachment order made by the Sub Court, Namakkal which was entered in the Encumbrance Certificate in the year 2003.

2. It is the case of the appellants that the suit itself was compromised subsequently and the suit was dismissed for default as early as on 02.03.2007, despite the said decree having been placed before the Sub Registrar, the Sub Registrar has chosen to reject the document on the ground that the attachment is in force. The Writ Petition was dismissed on the premise that since the order of dismissal of the suit was not communicated and the entry in the encumbrance certificate was not removed, the Registrar was justified in issuing a check slip. We are unable to sustain the order of the learned Single Judge. An attachment as is known to law runs with the land. An attachment over the property does not operate as a bar on sale of the property.

3. In fact order 38 Rule 11-A Rule 2 of the Code of Civil Procedure makes it very clear that an attachment before judgment made in a suit which is dismissed for default will not revive merely because the suit is restored. Further Section 64 of the Code of Civil Procedure which deals with an effect of attachment reads as follows:

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.

(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 purpose of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.

A reading of the above provision makes it clear that an alienation of attached property is not completely prohibited. Such alienation is declared to be void only against claims enforceable under the attachment. Therefore, mere fact that an attachment order is passed by a Court does not have the effect of suspending the constitutional right to property assured under Article 300-A of the Constitution of India.

4. On facts we do not see any necessity to go into those questions since enough material has been placed before us to show that the suit itself has been dismissed in the year 2004. Therefore, the non-deletion of the entry in the encumbrance certificate alone would not bring the matter within the scope of Section 22-B(3) of the Registration Act.

5. Hence we are satisfied that the order impugned in the Writ Petition needs to be set aside. The Writ Appeal is allowed, the order of the learned Single Judge as well as the order impugned in the writ petition are set aside. There will be a direction to the Registrar concerned viz. the Sub Registrar, Paramathi, to register the instrument of partition dated 16.03.2023, if it is presented for registration again within a period of 15 days from today. There shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.

6. We find that in the recent past, many Sub-Registrars are refusing to register non-testamentary instruments, dealing with immovable property on the ground that there is an entry relating to an order of attachment passed by a Civil Court even though it is brought to their knowledge that the suit in which the order of attachment was passed has either be