JUDGMENT

The petitioner, who is the owner in possession of property having an extent of 3.08 Ares comprised in Sy.No.2762/7/5/2 of Kavadiar Village, together with building bearing TC No.3/678 obtained by way of Ext.P1 sale certificate bearing No.642/2020 of the Sub Registrar Office, Pattom, dated 05.03.2020, issued under sub-rule (6) of Rule 9 of the Securities Interest (Enforcement) Rules, 2002 executed by M/s.Indiabulls Housing Finance Limited, represented by its Authorised Officer, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1st respondent Sub Registrar, Pattom to efface/delete all the attachment orders reflected in Ext.P3 encumbrance certificate dated 02.11.2020 on the property covered under Ext.P1 sale certificate.

2. On 14.12.2020, when this writ petition came up for admission, the learned Government Pleader was directed to get instructions.

3. A statement has been filed by the 1st respondent Sub Registrar, opposing the reliefs sought for in this writ petition. In the statement, the 1st respondent has placed reliance on the judgment of a learned Single Judge of this Court in Kuriachan Chacko v. State of Kerala [2012 (3) KLT 600], wherein it was held that, as evident from Section 89 of the Registration Act, 1908 the Sub-Registrar on his own is not empowered either to pass an order of attachment or to put an endorsement in the books or registers concerned. He has to place/file the copies of the orders in Book No.1, going by the provisions of sub-sections (2), (4), (5) and (6) of Section 89, and based on which endorsement can be made. Therefore, the Act does not provide for exercise of any power suo motu by the Sub-Registrar to make an entry in the relevant register and to carry out the same while issuing the encumbrance certificate.

4. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents.

5. Ext.P1 sale certificate is one registered pursuant to the direction contained in Ext.P2 judgment of this Court dated 10.12.2018 in W.P.(C)No.16745 of 2018 filed by M/s.Indiabulls Housing Finance Limited. In that writ petition, the specific contention raised by the Secured Creditor was that the attachments in the encumbrance certificate dated 16.08.2017 (Ext.P11 in that writ petition) were subsequent to the date of mortgage, i.e., 20.11.2012. In Ext.P2 judgment, this Court directed the the 2nd respondent herein to consider the request of the Secured Creditor for registration of the sale certificate issued in favor of the petitioner herein in terms of law and register the document, if all the attachments recorded in the relevant books as well as in the encumbrance certificate, are subsequent to the date of mortgage as asserted by the petitioner therein through the declaration of acknowledgment of deposit of title document dated 20.11.2012 (Ext. P2(b) in that writ petition). Paragraph 3 and also the operative portion of Ext.P2 judgment read thus;

“3. On a consideration of the afore and since I notice that the petitioner's assertion is that the attachment in Ext.P11 are all subsequent to the mortgage executed by respondents 1 to 6 in their favor, and since the petitioner appears to have sold the property in question to the 9th respondent invoking the powers under the SARFAESI Act, I see no reason why the 7th respondent-Sub Registrar should refuse to register the sale document in favor of the 9th respondent, particularly because he has paid the entire sale consideration as early as in March 2018.

If, as stated by the petitioner, all the attachments are subsequent to the date of mortgage, as they say is evident from Ext.P2(b), then I see no reason why the 7th respondent should not allow the registration of the sale certificate. If on the contrary, any of the entries in the Encumbrance Certificate or in the books are found to be prior to the date of mortgage, then alone the registrar will require to enquire furt