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2024 Supreme(Online)(KER) 24476
HIGH COURT OF KERALA
P.V.KUNHIKRISHNAN, J
BINOY JOSEPH – Appellant
Versus
AUTHORISED OFFICER – Respondent
WP(C) 10321/2024
Attachments made after an equitable mortgage creation cannot impede the rights of a bona fide purchaser.
Headnote:
Writ - Property - Equitable Mortgage - Attachment - Registration
Fact of the Case:
The petitioner filed a writ petition seeking to declare an attachment on a property as non-est following an equitable mortgage creation and to direct registration of a sale certificate disregarding the attachment.
Finding of the Court:
The court found that the attachments were created subsequent to the mortgage in favor of the first respondent, hence, directed that they be effaced and the sale certificate registered.
Issues: Whether the attachments on the property post-mortgage creation affect the registration of the sale certificate.
Ratio Decidendi: Attachments created after an equitable mortgage do not harm the purchaser's rights or the mortgage's enforcement.
Final Decision: The Writ petition was allowed.
This writ petition is filed seeking the following reliefs:
- “i. Issue a writ of mandamus or any other appropriate writ or order declare that attachment reflected in ExhibitP2 encumbrance certificate subsequent to creation of equitable mortgage in favour of the 1st respondent is non-est and does not affect the marketability and title of the property covered by Exhibit P1 Sale Certificate.
- ii. Issue a writ of mandamus or any other appropriate writ, direction or order directing, the 2nd respondent to register the exhibitP1 Sale certificate dehors the attachment shown in Exhibit P2. And iii. Pass such other appropriate writ or order which is deemed just and necessary on the facts and circumstances of the case.”[SIC]
2. Petitioner purchased a property notified for sale from the 1st respondent and a sale certificate was issued to the petitioner. The Sub Registrar refused to register the sale certificate stating that the purchased property is having attachment obtained by private parties. According to the petitioner, the attachments are subsequent to the mortgage created in favour of the 1st respondent. Hence this Writ petition is filed.
3. Heard the learned counsel appearing for the petitioner and the learned Government Pleader.
4. Admittedly, all the attachments mentioned in Ext.P2 are subsequent to the mortgage created with the 1st respondent by the borrower. Petitioner is the bonafied purchaser of the property in the auction conducted by the 1st respondent. Therefore, I am of the considered opinion that the prayers in this Writ petition is to be allowed. Moreover, in State Bank of India v. Sub Registrar, Eravipuram [ 2023 KHC OnLine 10385 ] this Court observed that the attachment effected subsequent to the creation of equitable mortgage has to be effaced by the officer concerned. The relevant portion of the above judgment is extracted hereunder:
- “9.
- In the light of the dictum laid down by this Court in the above decisions, Ext. P6 is quashed. The attachment effected subsequent to the creation of equitable mortgage has to be effaced by the 2nd respondent from the Revenue records and the 1st respondent is directed to register Ext.P5 Sale Certificate as and when presented, notwithstanding the order of attachment of the Sub Court, Kottarakkara in O.S. No. 36/2020 dated 27.10.2020, if the document is otherwise in order.”
- In the light of the above principle, this Writ petition is to be allowed. Therefore, this Writ Petition is disposed of in the following manner:
1. The 2nd respondent is directed to efface all pending attachments mentioned in Ext.P2 relating to the secured property which is subsequent to the mortgage created with the 1st respondent, as expeditiously as possible, at any rate, within a period of two weeks from the date of receipt of a copy of this judgment.
2. After effacing the attachments, the 2nd respondent will register Ext.P1 sale certificate, if the same is produced and if it is otherwise in order.
3. The petitioner will produce a certified copy of this judgment along with a copy of the Writ Petition with exhibits before the 2nd respondent for compliance.
