SOUTH INDIAN BANK LTD Vs. SUB REGISTRAR

JUDGEMENT

(1.) This writ petition is filed by the petitioners, namely the South Indian Bank Limited and its authorized officer, seeking direction to the first respondent to register the sale certificate in respect of 8.09 Ares of property comprised in Survey No.738/2 of Elamkulam Village, Kanayannur Taluk in the name of the first petitioner when presented for registration before him by the petitioners, without creating any inhibition, consequent to the attachment effected on the above property by the Subordinate Judges Court, Ernakulam in I.A.No.1920/2016 in O.S.No.104/2016, and also for other related reliefs.

(2.) Necessary facts for the disposal of the writ petition are as follows:-

(3.) The 5th respondent has filed a counter affidavit refuting the allegations, claims and demands raised by the petitioners. According to the 5th respondent, going by the pleadings in the writ petition the refusal by the registrar to register the sale certificate in view of the attachment was, admittedly, on or before Ext.P2. The said aspect was confirmed by Ext.P3 reminder letter, and therefore, going by Section 77 of the Registration Act, 1908 a suit ought to have been instituted on or before 28.12.2016 and the right flowing from Section 77 in favour of those claiming under the document, has now been lost by efflux of time. It is also contended that, refusal to register a document is taken care of under Sections 72 and 77 of the Registration Act, 1908 and the attempt of the petitioner is to get over the period of limitation prescribed thereunder. That apart it is also contended that, if the petitioners in any any manner affected by attachment order under Order XXXVIII of the Code of Civil Procedure, 1908, remedy is provided under Rule 10 of Order XXXVIII of the CPC and no reasons are assigned by the petitioners for not availing the same remedy. It is also stated that, the attachment effected is not under challenge in this writ petition and the challenge is only with respect to the consequential act done by the registering authority as mandated under Section 89(5) of the Registration Act, 1908. According to the 5 th respondent, 5 th respondent is taking all steps to challenge the judgment in W.A.No.2349/2016. Other contentions are also raised to canvass the proposition that petitioners have not made out a case warranting interference of this Court exercising the power of judicial review under Article 226 of the Constitution of India.