JUDGMENT

The petitioner states that he is the absolute owner in title and possession of property having an extent of 4 cents comprised in Sy. No. 22/11 of Vettom Village. It is contended that O.S.No. 250/2002 was instituted before the Court of Munsiff, Tirur by ‘Sopanam Chits and Financiers Pvt. Ltd’ seeking for the realisation of a sum of Rs.10,500/- together with interest. An attachment was obtained over the property mentioned above as per order in I.A.No.1634/2002 in O.S.No.250 of 2002. The suit was decreed as per judgment dated 4.12.2003. Later, the plaintiff filed E.P.No.306/2004 and during the pendency of the Execution Petition, the petitioner paid up the decree amount. The E.P. was closed on 11.11.2005. The petitioner states that recently when he applied for and obtained the encumbrance certificate, it was found that the fact of the lifting of attachment was not brought to the notice of the Sub Registrar by the Court though the attachment was lifted. In the said circumstances, the petitioner approached the Court of Munsiff and filed Ext.P4 application for communicating the order of attachment to the Sub Registrar. The petitioner contends that though the application was taken on file, the same was not numbered as the attachment application and the orders passed thereon were not found among the records. According to the petitioner, when the Execution Petition was closed, the said fact ought to have been brought to the notice of the Sub Registrar and the petitioner cannot be faulted. It is in the afore circumstances that the petitioner is before this Court seeking the following reliefs:

a) Issue a writ of mandamus or any other appropriate writ or direction, directing the respondent to efface the attachment on the immovable property of the petitioner having an extent of 4 cents, comprised in Sy. No. 22/11 of Vettom Village, Malappuram District in I.A.No. 1634/2002 in O.S.No. 250/2002 of Munsiff Court, Tirur and make necessary changes in the official records in that regard, within such time as may be pleased by this Hon’ble Court.

2. Sri. Jamsheed Hafiz, the learned counsel appearing for the petitioner submits that the amount ordered as per Ext.P1 judgment was cleared off by the petitioner in the year 2005. Though the learned counsel has not produced any records to substantiate the said fact, it appears from Ext.P4 application that the petitioner has asserted by way of a sworn affidavit that the entire amounts have been paid.

3. Order XXXVIII, Rule 5 of the Code of Civil Procedure Code, 1908 deals with attachment before judgment, which reads thus;

"5. Where defendant may be called upon to furnish security for production of property.- (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, -

(a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sums as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.

(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.

(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void."

4. In Sathish N. Rajan v. District Collector, Ernakulam and others [2019 (2) KHC 634] this Court had occasion to hold that the sole object of Order