George Antony vs State Of Kerala
2021 Latest Caselaw 23403 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

                  THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

         THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943

                             WP(C) NO. 25257 OF 2021

PETITIONER:

               GEORGE ANTONY
               AGED 81 YEARS
               S/O. MATHEW, PARACKAL HOUSE, KIDANGOOR (P.O.), ANGAMALY,
               ERNAKULAM, PIN-686572.

               BY ADVS.
               K.R.PRATHISH
               RESHMI JACOB
               PRIYADARSINI VINCENT
               BOBY THOMAS



RESPONDENTS:

     1         STATE OF KERALA
               REPRESENTED BY PRINCIPAL SECRETARY, REGISTRATION DEPARTMENT,
               GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA-695001.

     2         SUB REGISTRAR,
               CHENGAMANADU SUB REGISTRAR OFFICE, DESOM P.O., KUNNUMPURAM,
               ERNAKULAM, PIN-683103.


OTHER PRESENT:

               SR.GP - SMT AMMINIKKUTTY




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.11.2021,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 25257 OF 2021

                                      2




                              JUDGMENT

The petitioner says that he purchased an extent of 16 Ares 21

sqm of property, comprised of in Re.Sy.No.299/3/2 of the

Parakkadavu Village, from a certain Sri.Kuriyachan through Ext.P1

Sale Deed. He explains that Sri.Kuriyachan obtained the property

through a decree of specific performance, obtained by him against

the original owner, in O.S.No.209/1993 and that Ext.P2 Sale Deed

was, thereafter, registered in his name.

2. The petitioner says that, however, when the

aforementioned Suit filed by Sri.Kuriyachan was pending, he had

obtained an order of injunction against the original owner on

01.04.1993, to the effect that the latter shall not sell the property for

a period of six months therefrom, but that when the suit itself was

finally decreed and Sri.Kuriyachan became the owner of the plaint

schedule property, the said order merged into the final proceedings

and does not obtain any independent legs to stand on.

3. The petitioner says that, however, because the Encumbrance

Certificate still contains an entry with respect to the afore said order

of injunction, the Banks and Financial Institution, whom he has

approached, has refused to grant him any loan facility on the

strength of his property.

WP(C) NO. 25257 OF 2021

4. The petitioner says that, he therefore, approached the 2 nd

respondent - Sub Registrar through Ext.P4 seeking effacement of

Entry No.1 in Ext.P3 Encumbrance Certificate but that it has not

been acceded to merely saying that the order of attachment is still in

force.

5. I have heard Sm.Reshmi Jacob, learned counsel for the

petitioner and Smt.K.Amminikutty, learned Senior Government

Pleader appearing for the official respondents.

6. Smt.K.Amminikutty, submitted that the 2nd respondent -

Sub Registrar is incapacitated from effacing Entry No.1 in Ext.P3

Encumbrance Certificate because, the order of injunction is one

which has been issued by a competent Civil Court. She submitted

that, in any event of the matter, as is evident from the said entry, the

order of injunction is shown only to be in effect until 30.07.1993 and

therefore, that the petitioner is not prejudiced by the same. She thus,

prayed that this writ petition be dismissed.

7. Even when I hear the learned Senior Government Pleader

as afore and though there is some force in what she says, the fact

remains that the order of injunction was issued in favour of the

petitioner's predecessor-in-interest, Sri.Kuriyachan, on his application

in O.S.No.209/1993 filed by him against the original owner. The WP(C) NO. 25257 OF 2021

dispute between Sri.Kuriyachan and the original owner related to an

agreement of sale between them, which finally ended in a decree in

favour of the former and Ext.P2 Sale Deed was then executed in his

favour.

8. Obviously, therefore, the first entry in Ext.P3 Encumbrance

Certificate would have no relevance or purpose at this stage, since

Sri.Kuriyachan, does not require to obtain the benefit under it on

account of the subsequent developments.

9. In such circumstances, I am certain that the petitioner is

entitled to relief as sought for.

Resultantly, I order this writ petition with a consequential

direction to the 2nd respondent to consider the application of the

petitioner for effacement of Entry No.1 in Ext.P3 Encumbrance

Certificate and accede to the same, if there are no other legal

impediments; and issue a fresh Encumbrance Certificate to the

petitioner without such entry, as expeditiously as is possible but not

later than three weeks from the date of receipt of a copy of this

judgment.

SD/-

DEVAN RAMACHANDRAN JUDGE rp WP(C) NO. 25257 OF 2021

APPENDIX OF WP(C) 25257/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE SALE DEED BEARING NO.854/2014 DATED 17.2.2014 IN THE NAME OF THE PETITIONER.

Exhibit P2 TRUE COPY OF THE SALE DEED BEARING NO.2857/2012 DATED 19.6.2012 OF CHENGAMANAD SUB REGISTRY IN THE NAME OF MR.KURIACHAN.

Exhibit P3 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE OBTAINED ONLINE FROM SUB REGISTRAR OFFICE CHENGAMANAD.

Exhibit P4 THE APPLICATION FILED BEFORE THE SUB REGISTRAR, CHENGAMANAD DATED 10.8.2021.

Exhibit P5 TRUE COPY OF THE REPLY DATED 29.9.2021 GIVEN BY THE 2ND RESPONDENT, SUB REGISTRAR, CHENGAMANAD.

Exhibit P6 TRUE COPY OF THE JUDGMENT DATED 30.10.1993 IN OS.NO.209/1993 IN THE COURT OF MUNSIFF, ALUVA WITH TYPED COPY.

Exhibit P7 TRUE COPY OF THE DECREE PASSED IN OS.NO.244/1994 DATED 28.2.1995.