JUDGMENT

The petitioner says that he purchased a property comprised of 3.46 Ares in Chirakkada Village through Ext. P1 Sale Deed dated 10/10/2019. He says that he had caused due diligence of the property at the time when the constructions were made by him and that there were no records anywhere as regards any prior charge over it, which is evident from the fact that the originals of Exts.P4 and P4(a) title deeds were also handed over to him by the 3rd respondent, who is the original owner.

2. The petitioner says that, however, when he obtained Ext.P2 Encumbrance Certificate from the office of the 1st respondent - Sub Registrar, to avail a financial facility on the strength of the said property, he came to be aware that there is an order of attachment marked on it, which is dated 25/11/2019. He says that this order has been produced on record as Ext.P3, from which, it is clear that it is pursuant to an arbitration proceedings initiated by the 4th respondent against the original owner of the property, namely the 3rd respondent, with respect to a vehicle loan.

3. The petitioner contends that since he had purchased the property in question much before the order of attachment had been brought over the property at the instance of the 4th respondent, the Sub Registrar is obligated in law, particularly, on account of the various judgments of this Court, to efface the orders of attachment from the Encumbrance Certificate, so as to enable him to use his property without impediment in future.

4. I have heard Sri. Liji. J. Vadakkedom – learned counsel for the petitioner and Smt. Resmitha Ramachandran – learned Government Pleader appearing for respondents 1 and

2.

5. Even though notices from this Court have been validly served on respondents 3 and 4, they have chose not to be present in person or to be represented through counsel; inferentially guiding me to the impression that they have nothing to offer in answer to the various allegations made and the reliefs sought for in this writ petition.

6. Smt. Resmitha Ramachandran – learned Government Pleader submitted that the 2nd respondent – Sub Registrar is incapacitated from acceding to the request of the petitioner because Ext.P3 is an order of a competent Authority. She, however, submitted that if this Court is inclined to grant relief to the petitioner, the second respondent will have no objection in doing so, provided the petitioner convinces that the originals of Ext.P1 Sale Deed was executed prior to Ext.P3 order.

7. When I consider the afore submissions and go through the materials available on record, prima facie, it appears that Ext.P1 Sale Deed was executed on 10/10/2019; while Ext.P3 order of attachment was issued only on 23/11/2019. Going by the well recognized principles of creation and priority of charges over properties, it is ineluctable that if the afore facts are accurate, then the petitioner is justified in seeking that the endorsement relating to the attachment on Ext.P3 Encumbrance Certificate deserves to be effaced.(see for support Secretary, Keechery Service Co-operative Bank Ltd., V. Sajitha Nizar Alias Sajitha P.M.(2020 (6) KLT 68).

8. In the afore circumstances, I direct the petitioner to mark appearance before the 2nd respondent – Sub Registrar on 17/11/2021, along with the originals of Exts.P1, P4 and P4(a) title documents; in which event the said Authority will verify the same and if it is found that Ext.P1 was executed on 10/10/2019 and that Ext.P3 is issued only on 25/11/2019, then the request of the petitioner will be immediately acceded to and a new Encumbrance Certificate issued, without an entry regarding Ext.P3.

9. The afore exercise shall be completed by the 2nd respondent – Sub Registrar, within a period of one week from

17/11/2021.

10. Needless to say, the petitioner will be, thereafter at full liberty to move the Village Officer for effacing the entry regarding Ext.P3 in any of the village records appropriately, who will thereupon be guided by the afore directions