Madras High Court
A.K.Prabakar vs The District Registrar on 5 August, 2024
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
W.P.(MD)No.15841 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.08.2024
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.P.(MD)No.15841 of 2024
A.K.Prabakar
... Petitioner
Vs
1. The District Registrar,
O/o.The District Registrar Office,
Nagercoil, Kanyakumari District.
2. The Sub-Registrar,
O/o.The Sub-Registrar Office,
Near Eraniel Police Station,
Thingal Nagar, Nagercoil, Kanyakumari District.
3. Vishanjee Manilal Patel,
Through one of its Partner,
A Registered Partnership Firm,
Door. No. 2/135b, Nilash Timbers,
Kottakulam, Senkottai, Tenkasi District.
(R3 is impleaded as per order of this
Court in WMP(MD) No., dated 26.07.2024)
... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of India,
praying for the issuance of a Writ of Mandamus, to direct the 2nd respondent to
remove the entry made in the encumbrance of House Property (Door No.4/175A),
1/5
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W.P.(MD)No.15841 of 2024
in Old Survey No.1117C, 1117D, Resurvey No.770/11 (Now Divided as S.No.
770/11C, 770/12 situated at Eraniel Village (now Nullivilai B), Nullivilai
Panchayat, Kalkulam Taluk, Kanyakumari, purchased through auction purchase by
the petitioner.
For Petitioner : Mr.R.Vignesh
For Respondents : Mr.P.Subburaj (R1-R2)
Special Govt. Pleader
ORDER
This Writ Petition has been filed seeking direction to the 2nd
respondent to remove the entry made in the encumbrance of House Property (Door
No.4/175A), in Old Survey No.1117C, 1117D, Resurvey No.770/11, purchased by
the petitioner, through auction purchase.
2. It is the case of the petitioner that original owner of the property in
S.No. 1117C, 1117D, Resurvey No.770/11 has availed a loan from the bank and
mortgaged the property on 20.03.2013. Thereafter, on 20.03.2015 he has also
extended mortgage for other two properties, which were not originally mortgaged.
As he defaulted, the proceedings under SARFASSI Act has been initiated, which
culminated into issuance of the Sale Certificate in favor of the petitioner on
22.04.2021. During the pendency of the above proceedings, the unsecured
creditor has filed a suit for recovery of money on the basis of some negotiable
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instrument in O.S.No.16 of 2018, on the file of Additional District Court, Tenkasi,
much after the mortgage. In the above pendency of suit an application has been
filed in I.A.No.12 of 2018, wherein, order of attachment before judgment has been
passed. The same has been reflected in the Encumbrance Certificate of the
property. Therefore, now it is the contention of the petitioner that since the
mortgage is earlier to the judgment, it would not have any bearing and hence,
such entry should be removed.
3.Heard the learned counsel for the petitioner and the learned Special
Government Pleader appearing for the respondents. Perused the records available
on record.
4.So far as the removal of entry from the encumbrance certificate is
concerned, this Court is of the view that the entry itself is only to inform about the
public about the nature of transaction effected in respect of the property in
particular survey number. Therefore, either Sub Registrar or District Registrar
cannot remove such entry as a matter of right, as far as the petitioner's case is
concerned. As the petitioner is the auction purchaser based on the mortgage
executed in the year 2013, any subsequent document executed in respect of same
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property will always subject to the sale certificate only. Since the secured creditor
has already been realized and sale certificate is also issued, any further entry will
become insignificant. In such view of the matter, mere entry will not bar for the
petitioner to deal with the property.
5.With the above directions, this writ petition stands disposed of.
There shall be no order as to costs.
05.08.2024
NCC : Yes/No
Index : Yes/No
PNM
To
1. The District Registrar,
O/o.The District Registrar Office,
Nagercoil, Kanyakumari District.
2. The Sub-Registrar,
O/o.The Sub-Registrar Office,
Near Eraniel Police Station,
Thingal Nagar, Nagercoil, Kanyakumari District.
https://www.mhc.tn.gov.in/judis
N.SATHISH KUMAR, J.
PNM
ORDER IN
05.08.2024
https://www.mhc.tn.gov.in/judis
