IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 WA.No. 2781 of 2007 --------------------- AGAINST THE JUDGEMENT IN WPC.22522/2007 Dated 13/08/2007 .................... APPELLANT/PETITIONER: ------------------------------------- K.S.RAJACHANDRAN, S/O.SANKARAN, KOTTARAPPATTU HOUSE, P.O.AKKIKKAVU, THRISSUR DISTRICT. BY ADV. SRI.K.K.MOHAMED RAVUF ADV. SRI.T.KRISHNANUNNI (SR). RESPONDENTS/RESPONDENTS: --------------------------------------------- 1. THE VILLAGE OFFICER, KUNNAMKULAM, THRISSUR DISTRICT. 2. THE TAHSILDAR, THALAPPILLY TALUK, VADAKKANCHERRY, THRISSUR DISTRICT. 3. STATE BANK OF TRAVANCORE, KUNNAMKULAM BR., KUNNAMKULAM, THRISSUR DISTRICT, REPRESENTED BY ITS CHIEF MANAGER. ADDL.4TH RESPONDENT IMPLEADED. ADDL.R4. SUB REGISTRAR, KUNNAMKULAM. ADDL.4TH RESPONDENT IS SUO MOTU IMPLEADED VIDE JUDGMENT DTD.6.3.2008. BY GOVT. PLEADER SMT. K. MEERA. R3 BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L. DATTU, CJ. & K.M. JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - WRIT APPEAL No.2781 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of March, 2008. JUDGMENT K.M. JOSEPH, J. The appellant is the writ petitioner. Petitioner had purchased ten cents of property from one Sri. Boban, who purchased the land in a court auction. According to the appellant he had taken all necessary steps. He submits that the prior owner had obtained encumbrance certificate for 13 years. After purchase the petitioner filed an application for effecting mutation and to receive tax, but the same was refused. Petitioner approached this court seeking a direction to effect mutation in respect of the property. The State Bank of Travancore got itself impleaded in the writ petition and contended that the property in question was subject of an equitable mortgage and what is more the property was proclaimed for sale in execution of the mortgage. 2. The learned Single Judge directed grant of possession certificate and also to effect mutation in the name of the petitioner without prejudice to the right of the Bank for appropriate action. Further the learned Single Judge directed that the appellant shall not alienate or encumber the property for a period of two years and the rights of the parties, including the right to deal with the property, should be governed by the decision of the appropriate authorities/courts which may be moved by the parties for adjudication of their rival claims. It is feeling aggrieved by the last portion of the judgment, namely, the direction that the appellant shall not alienate or encumber the property for a period of two years, that the petitioner has filed this writ appeal. WA.2781/2007. 2 3. We heard Sri. T. Krishnanunni, learned Senior counsel for the appellant and Sri. Sathish Ninan appearing for the third respondent. 4. Learned counsel for the appellant would point out that the appellant had approached this court praying for a direction to effect mutation, to accept tax and to issue possession certificate, and after directing to effect mutation and to issue possession certificate, the learned Single Judge was not justified in further directing that the appellant shall not alienate or encumber the property for a period of two years. He would submit that what is involved according to the third respondent is an equitable mortgage and it is still a mortgage and even if there is an alienation by the appellant, the interest of the third respondent is not at all affected by the said sale and the said sale will be subject to the rights of the third respondent under the mortgage. 5. Learned counsel appearing for the third respondent on the other hand pointed out that what weighed wiith the learned Single judge in passing the aforesaid direction was that the property had been proclaimed for sale pursuant to the order of the Debt Recovery Tribunal on the strength of the mortgage in favour of the third respondent and the direction was given in the peculiar facts and circumstances as the learned Judge kept in mind and the possibility that the appellant may transfer the property and having regard to the fact that the mortgage is an equitable mortgage, a third party may purchase the property without the knowledge of the proceedings on the loan taken by the mortgagee. He would further submit that there is no ground for interference. At any rate, he would submit that the third respondent has no objection if the interests of the third respondent are adequately safeguarded by issuing appropriate direction to the Registrar to signify the existence of the mortgage. 6. Sub Registrar, Kunnamkulam shall stand suo motu impleaded as WA.2781/2007. 3 additional fourth respondent. Government Pleader takes notice for the additional fourth respondent. In such circumstances, the writ appeal stands disposed of as follows: The condition in the impugned judgment that the appellant shall not alienate or encumber the property for a period of two years shall stand deleted. There will be a direction to the additional fourth respondent to enter the details of the mortgage in favour of the third respondent in the concerned book, so that in the matter of issue of encumbrance certificate in respect of the property, the factum of the mortgage in favour of the third respondent will be indicated. Consequently, I.A. 945 of 2007 is also closed. H.L. DATTU, CHIEF JUSTICE K.M. JOSEPH, JUDGE sb.