IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932 WP(C).No. 34487 of 2010(I) -------------------------- PETITIONER: --------------- SUMESH.M.S, S/O.SUKUMARAN NAIR, AGED 32 YEARS, BUSINESS, RESIDING AT MEPPALLIL HOUSE, KIDANGOOR SOUTH, MEENACHIL TALUK, PIN-686 583. BY ADV. MR. ABRAHAM MATHEW (VETTOOR) RESPONDENTS: --------------- 1. STATE OF KERALA REP.BY THE SECRETARY TO GOVERNMENT, REGISTRATION DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. DISTRICT REGISTRAR,COLLECTORATE, KOTTAYAM,PIN-686 001. 3. SUB REGISTRAR, KIDANGOOR, MEENACHIL TALUK, PIN-686 583. 4. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL),MEENACHIL, PALA, PIN-686575. 5. THE SPECIAL SALE OFFICER, STATE CO-OPERA TIVE HOUSING FEDERATION, NEAR JUDGES AVENUE, KALOOR, ERNAKULAM,. 6. THE KIDANGOOR RURAL HOUSING CO-OPERATIVE SOCIETY NO.K.137 KIDANGOOR PO,MEENACHIL TALUK, REPRESENTED BY ITS SECRETARY,PIN-686 583. 7. V.C.SURESH S/O.BHASKARAN NAIR, ALATHINGAL HOUSE,KIDANGOOR KARA, KIDANGOOR VILLAGE MEENACHIL NOW HAINV ADDRESS AT CONTRACTOR C/O.EXECUTIVE ENGINEER T.D.B.THIRUNAKKARA, KOTTAYAM, PIN-686 001. 8. MRS.SREEPARVATHY @ REMA,D/O. BHASKARAN PILLAI,PARVATHY NIVAS,KURICHY KARA, KURICHY VILLAGE,KOTTAYAM PIN-686 001. R1 TO R3 BY SENIOR GOVERNMENT PLEADER MR. P.K. ARAVINDAKUMARA BABU R6 BY ADV. MR. PHILIP T.VARGHESE, MR. THOMAS T.VARGHESE AND MR. S.SARATH R8 MS. SANDHYA RAJU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 34487 OF 2010 APPENDIX PETITIONER'S EXHIBITS : EXT. P1 : A TRUE COPY OF THE GIFT DEED NO. 491 OF 1990 OF THE SRO KIDANGOOR EXECUTED IN FAVOUR OF THE 7TH RESPONDENT DATED 28.03.90 EXT. P2 : A TRUE COPY OF THE SALE CERTIFICATE PREPARED IN DULY STAMPED PAPERS IN FAVOUR OF THE PETITIONER BY THE 4TH RESPONDENT DATED 21.07.2010 EXT. P3 : A TRUE COPY OF THE ENCUMBRANCE CERTIFICATE IN RESPECT OF THE PROPERTY COVERED BY EXTS. P1 AND P2 ISSUED BY THE 3RD RESPONDENT DATED 14.05.2008 EXT. P4 : A TRUE COPY OF THE SEKTCH OF THE PROPERTY PREPARED BY THE VILLAGE OFFICER, KIDANGOOR. EXT. P5 : A TRUE COPY OF THE TAX PAID RECEIPT DATED 26.03.1990 EXT. P6 : A TRUE COPY OF THE ORDER OF ATTACHMENT PASSED BY THE FAMILY COURT, KOTTAYAM IN I.A. NO. 248 OF 2000 IN O.P NO. 86 OF 2000 DATED 22.02.2000 /TRUE COPY/ P.A. TO JUDGE. P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P (C) No. 34487 OF 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 1st day of March, 2011 JUDGMENT The petitioner is before this Court, because of the refusal on the part of the 3rd respondent in registering Ext. P2 sale certificate, whereby the property in question has been purchased by the petitioner, on turning to be the successful bidder in the auction conducted at the instance of the 6th respondent Housing Co-operative Society. 2. The sequence of events as narrated in the Writ Petition is as follows: The 7th respondent herein had availed a housing loan from the 6th respondent, creating equitable mortgage over the property in question, as early as in the year 1991. Subsequently, he turned to be a defaulter, whereby the 6th respondent took appropriate steps, which culminated in the sale of the property concerned. The petitioner herein purchased the said property in the public auction leading to issuance of Ext. P2 sale certificate. 3. The grievance of the petitioner is that, when Ext. P2 sale certificate was taken for registration before the 3rd respondent, the request was turned down, stating that, there was an attachment over the property W.P. (C) No. 34487 of 2010 2 in question, as ordered by the Family Court, Kottayam at Ettumanoor, on account of the alleged liability cast upon the 7th respondent in a matrimonial dispute. The petitioner has sought for issuance of appropriate direction to the 3rd respondent to have Ext. P2 sale certificate registered in favour of the petitioner, stating that the attachment can't defeat the mortgage rights created earlier and the rights of the successful bidder. 4. As noted by this Court, when the matter was taken up yesterday, despite service of notice to the 7th and 8th respondents, there is no appearance on behalf of them and as such, the pleadings in the Writ Petition in so far as the transaction is concerned stand un-rebutted from their side. Pursuant to the interim order dated 16.02.2011, the third respondent has filed a statement, producing a copy of the attachment order issued by the Family Court as Ext. R3(a). 5. The learned counsel for the petitioner submits that, Annexure R3 (a) cannot be a ground to deny the registration sought for by the petitioner, primarily for the fact that the property concerned in Ext. P2 sale certificate and the property covered by Annexure R3(a) are entirely different in view of the crystal clear difference between the survey numbers. The learned counsel submits that, the old survey number in respect of the property covered by Ext. P2 is '133/9'; whereas the old survey number in respect of W.P. (C) No. 34487 of 2010 3 the property concerned in Annexure R3 (a) is 133/13. Reference is also made to the description of the boundaries in Exts. P2 and Annexure R3 (a), asserting that, the boundaries are also different and as such, the properties are entirely different. 6. The learned Government Pleader appearing for the respondents 1 to 3 submits that the 're-survey' number noted in both the documents [Ext. P3 and Annexure R3 (a)] are the same as '324/9' and it was in the said circumstance that the request of the petitioner was turned down and hence that the third respondent is not liable to be blamed in this regard. 7. After hearing both the sides, this Court finds that the mortgage created by the owner of the property was years back, in 1991 whereas the attachment order has been effected only in June, 2000. As rightly pointed out by the learned counsel for the petitioner that there is clear difference in old survey numbers of the properties concerned and the boundaries and thus the identity of the property itself does not appear to be correct. There is no contest from the part of the 7th and 8th respondent as will. In the said circumstances, the third respondent is directed to take necessary steps to have Ext. P2 sale certificate registered in accordance with law, as expeditiously as possible, at any rate, within one week from the date of production of the same by the petitioner. It is open for the petitioner W.P. (C) No. 34487 of 2010 4 to take appropriate remedial measures with regard to Ext. P2 so as to make it legally acceptable or for such other alternative course as permissible in law. The Writ Petition is disposed of. P. R. RAMACHANDRA MENON, JUDGE kmd