JUDGMENT

Dated this the 12^th day of February, 2024 Petitioner has approached this Court seeking the following reliefs :

“(i) issue a writ, order or direction in the nature of mandamus or other appropriate writ directing the second respondent to forthwith erase the attachment reflected in Ext.P5 encumbrance certificates, which is the result of entering into Book No.1 of Karakulam Sub Registry, Volume 406 pages 243-246 in file No.F86/2022, the attachment effected in O.S.No.870/2022 on the files of Principal Munsiff's Court, Thiruvananthapuram, which is entries 2 in Ext.P5, in the interests of justice.

(ii) Issue a writ, order or direction in the nature of mandamus or other appropriate writ, directing respondent No.2 the Sub Registrar to facilitate registration as and when the sale certificate is presented on stamp paper after erasing the attachment and further direct the Village Officer, the third respondent, to effect mutation in the name of the purchaser to whom the sale certificate will be issued and registered as and when registration is facilitated.

(iii) Allow the petitioner to recover the full costs incurred for the institution and conduct of the proceedings from respondent Nos.4 and 5.”

2. Respondents 4 and 5 are borrowers from the petitioner Company by creating a mortgage in favour of the petitioner on 27.08.2019. Later on the loan amount was defaulted, proceedings were initiated under the SARFAESI Act. The property was put to sale and the sale was conducted on 30.12.2023, and the property was purchased by one Smt.Revathy.S.S. and Ext.P4 sale certificate was issued in favour of the purchaser. Petitioner intended to complete the proceedings by registration of the sale deed. Perusal of Ext.P5 encumbrance certificate dated 30.06.2022 shows that there is an attachment over the property in a suit filed as O.S.No.870 of 2022 before the Principal Munsiff Court, Thiruvananthapuram, at the instance of the sixth respondent. Petitioner submits that the said attachment, which was subsequent to the mortgage created in favour of the petitioner on 27.08.2019, cannot affect the sale conducted as per the provisions of the SARFAESI Act and that the respondents are bound to register the sale certificate.

3. Heard the learned counsel for the petitioner and the learned Government Pleader.

4. The learned counsel for the petitioner relied on the decision of this Court in Madhan S. v. Sub Registrar, Kollam and Others [2014 (1) KHC 249] and the decision of a Division Bench of this Court in Secretary, Keechery Service Co-operative Bank Ltd. v. Sajitha Nizar alias Sajitha P.M. and Others, [2020 (5) KHC 231] and contends that the attachment effected subsequent to the creation of equitable mortgage will not affect the right of the Bank to sell the mortgaged property and the attachment has to be effaced from the encumbrance register.

5. In Madhan's case (supra), this Court held in paragraph 9 as follows:-

“9. The preponderance of judicial opinion leads to the irresistible conclusion that the sale of the mortgaged property in favour of the petitioner under Ext. P5 sale certificate under the Act is free of all encumbrances. The attachments effected subsequent to the mortgage created in favour of the bank do not affect the title and ownership of the petitioner over the subject property. Such attachments have no impact on the sale conducted under the Act and the same ceases to have any 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 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 o