IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH FRIDAY, THE 21^ST DAY OF JUNE 2024 / 31ST JYAISHTA, 1946 WP(C) NO. 18967 OF 2024 PETITIONER RASAK AGED 42 YEARS S/O. BASHEER, PUTHENPURAYIL HOUSE, VANNAPPURAM KARA, VANNAPPURAM P.O., THODUPUZHA, IDUKKI, PIN – 685607 BY ADVS.

LIJI.J.VADAKEDOM ATHUL V. VADAKKEDOM RESPONDENTS:

1 THE SUB REGISTRAR-KARIKODE OFFICE OF THE SUB REGISTRAR-KARIKODE, POOMALA ROAD, THODUPUZHA, IDUKKI, PIN - 685585

2 THE AUTHORIZED OFFICER UNDER SARFAESI ACT THE KERALA STATE CO-OPERATIVE BANK LTD, CREDIT PROCESSING CENTER, IDUKKI COLONY P.O., IDUKKI, PIN - 685602

3 THE KERALA STATE CO-OPERATIVE BANK LTD REPRESENTED BY ITS GENERAL MANAGER, OFFICE OF THE KERALA STATE CO-OPERATIVE BANK LTD., IDUKKI COLONY P.O., IDUKKI, PIN - 685602

4 THE SOUTH INDIAN BANK LTD., REPRESENTED BY ITS BRANCH MANAGER, KALIYAR BRANCH, MUNDACKAL TOWERS, IDUKKI ROAD, KALIYAR P.O., IDUKKI, PIN - 685607

5 MAKKAR K.P, KUNNUMPURATHU HOUSE, ODIYAMPARA, VANNAPPURAM P.O., THODUPUZHA, IDUKKI, PIN – 685607 By ADVS.

SRI.S.GOPINATHAN-SR.GOVERNMENT PLEADER K.S.ARUN KUMAR-R2 & R3 SUNIL SHANKAR A-R4 M.V.RAJENDRAN NAIR-R5 VIDYA GANGADHARAN(K/000424/2020)

GAYATHRI.M.M(K/003350/2022)

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 21^st day of June, 2024 The petitioner had purchased an extent of 12.14 Ares and 81 Square Meters of property in Survey Nos.1506/2/3, 1506/5/1/2 of Vannappuram Village in the public auction held by 2^nd respondent-Authorised Officer under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The said sale was conducted to enforce the security interest created in the property by way of mortgage by deposit of Title Deeds on 31.03.2015 by the then owner of the property, when he availed a loan from the 3^rd respondent- Bank. The sale is free from all encumbrances.

2. After the execution of Sale Certificate, the petitioner approached the 1^st respondent-Sub Registrar for registration of sale. As evident from Ext.P3, registration fee also was remitted. But, registration was refused citing the reason that there exists an attachment order obtained by the 4^th respondent-Bank Manager of South Indian Bank, Kaliyar Branch, over the property. The attachment is shown as Entry Nos.1 and 2 in Ext.P4 Encumbrance Certificate.

3. As evident from Ext.P4 entries, the attachments were ordered in the year 2021 in I.A. No. 157/2021 in O.A. 498/2017 before the Debts Recovery Tribunal-II, Ernakulam. The mortgage in favour of the 2^nd respondent-Bank was created on 31.03.2015. Therefore, the attachments are admittedly subsequent to the creation of mortgage.

4. It is held in Axis Bank (M/s.) v. Hilal Ahmed Bhat and Another [2022 (4) KHC 508] that "Once the sale is confirmed as per the provisions of Section 13(8) of the Act, the purchaser would get title to the property free of all encumbrances and any attachment upon the property will not have any consequence thereafter. The principle that emanates from the aforesaid decision is that an attachment of the secured asset after creation of mortgage in favour of the secured creditor, could be effaced once the sale is confirmed."

5. This Court in Phoenix ARC Pvt. Ltd v. Sub Registrar, Ferok [2023 KHC online 9452] found that the attachment after the creation of equitable mortgage can be effaced by filing the certified copy of the judgment of this Court directing the effacement of attachment in Book-1 kept at the office of the Sub Registrar. Hence, the petitioner filed this writ petition seeking to efface the entries of attachment orders in Ext.P4 and to effect registration of the Sale Deed.

6. Government Pleader entered appearance on behalf of the 1^st respondent and submitted that in Ext.P4, there are recording of two attachments by Court Order. 7. Standing Counsel appearing for respondents 2 and 3 submitted that the property was