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2015 DIGILAW 67 (KER)

Mundanthara Subramanian Ex-Serviceman v. Kattayat Vadasseri Thazhath Padmaja

2015-01-22

P.B.SURESH KUMAR, P.N.RAVINDRAN

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Judgment Application praying that in the circumstances stated in the affidavit filed therewith the High Court be pleased to pass an order directing the Registry to communicate the interim order of injunction granted in I.A. No. 1796/2013 on 27.08.2013 and extended until further orders on 28.02.2014 in respect of the plaint schedule property comprised of 7.20 cents situated in old Survey No.200/1 and Re-Survev No.86/3 of Nellikkode Amsom & Desom, Chevayoor Sub District, Kozhikode District with the residential building therein bearing old No.28/2189 and new No.19/310 and all improvements therein to the Sub Registrar, Chevayoor, Kozhikode District. This application coming on for orders upon perusing the application and the affidavit filed in support thereof, and this court's orders dated 27.08.2013 and 28-02-2014 in IA 1796/2013, and upon hearing the arguments of M/S N. SUBRAMANIAM, M.S. NARAYANAN, RANJITH NARAYANAN, S.K. SAJU, USHA NARAYANAN, A. SIMI, Advocates for the petitioner, the court passed the following: P.B. Suresh Kumar, J. In this interlocutory application, the appellant seeks an order directing the Registry to communicate the interim orders of injunction granted by this Court on I.A.No.1796 of 2011 to the Sub Registrar, Chevayoor. 2. As per the order passed on I.A. No 1796 of 2011 on 27.08.2013, this Court injuncted the respondent in the appeal from alienating or encumbering in any manner, the plaint schedule property in O.S.No.414 of 2011 on the fie of the Court of the Subordinate Judge, Kozhikode, for a period of six months and the said order was later extended until further orders on 28.02.2014. It is stated by the appellant in the affidavit filed in support of the application that though the orders passed by this Court on I.A.No.1796 of 2011 were communicated to the Sub Registrar, within whose jurisdiction the plaint schedule property is situated, the same are not entered in the books maintained by him and consequently, the interim orders issued by this Court are not reflected in the encumbrance certificates issued in respect of the plaint schedule property from the Sub Registry. It is also stated in the affidavit that the particulars of the orders issued by this Court are not entered in the books maintained by the Sub Registrar on the ground that only orders which would fall within the purview of Section 89(5) of the Registration Act, 1908, hereinafter referred to as 'the Act' for short, can be entered in the books maintained at the Sub Registry. It is further stated in the affidavit that if the orders of injunction passed by this Court are not entered in the books maintained at the Sub Registry, grave prejudice would be caused to the appellant, as notwithstanding the order, the legal representatives of the respondent are attempting to alienate the plaint schedule property to third parties. 3. Section 89 of the Registration Act, 1908, as amended by the Kerala Act 7 of 1968, reads thus: 89. Copies of certain orders, certificates and instruments to be sent to registering officers and filed— (1) xxxxxxxxxxx (2) Every Court granting a certificate of sale of immovable property under the Code of Civil Procedure, 1908 (5 of 1908), shall send a copy of such certificate to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such certificate is situate, and such officer shall file the copy in his Book No.1. (3) xxxxxxxxxxxxxx (4) Every Revenue Officer granting a certificate of sale to the purchaser of immovable property sold by public auction shall send a copy of the certificate to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in the certificate is situate, and such officer shall file the copy in his Book No.1. (5) Every court passing-- (a) any decree or order creating, declaring, transferring, limiting or extinguishing any right, title, or interest to or in immovable property in favour of or of any person, or (b) an order for attachment of immovable property or for the release of any immovable property from attachment, shall send a copy of such decree or order together with a memorandum describing the property, as far as may be practicable, in the manner required by section 21, to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such decree or order is situate, and such officer shall file the copy of memorandum in his Book No.1. (6) Every officer issuing a written demand before the attachment of the immovable property of a defaulter under the Revenue Recovery Act for the time being in force shall— (a) send a copy of such written demand together with a memorandum describing the property, as far as may be practicable, in the manner required by section 21; and (b) where such written demand is withdrawn or attachment of property is lifted or the property is sold and sale is confirmed, send a memorandum indicating that fact and describing that property, as far as may be practicable, in the manner required by section 21, to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property to which the written demand relates is situate and such registering officer shall file copy of the written demand and the memorandum in his Book No.1" Book 1 referred to in Section 89 of the Act is the register maintained in all registration offices in accordance with the provision contained in Section 51 of the Act for the purpose of entering the particulars of the non-testamentary documents relating to immovable properties. Certificates of encumbrance are issued in the form prescribed in Appendix VII to the Registration Rules (Kerala) on the basis of the search made in Book 1. In other words, only the particulars of the documents entered in Book 1 will be furnished in the encumbrance certificates issued in respect of a property. Certificates of encumbrance are issued in the form prescribed in Appendix VII to the Registration Rules (Kerala) on the basis of the search made in Book 1. In other words, only the particulars of the documents entered in Book 1 will be furnished in the encumbrance certificates issued in respect of a property. Obviously, it is on account of the said reason, a provision has been made in Section 89 of the Act, making it obligatory for the registering officers to file copies of the documents forwarded by courts as provided for in Section 89(5) of the Act also in Book 1, so that orders creating, declaring, transferring, limiting or extinguishing any right, title or interest to or in immovable property and orders of attachment of immovable property will also be reflected in the encumbrance certificates issued in respect of that property. 4. True, an order of injunction restraining alienation would not come within the purview of Section 89 (5) of the Act. An order of prohibitory injunction only interferes with the mode of enjoyment of property. If for that reason, the particulars of such orders are not entered in the books maintained at the Sub Registry, the litigants who do not have any respect for orders of the courts will be able to defeat such orders by alienating the property to third parties. If orders creating, declaring, transferring, limiting or extinguishing any right, title or interest to or in immovable property and orders of attachment of immovable property are required by law to be entered in Book 1 for the benefit of those who apply for search of encumbrances in respect of that property, there is no reason why an order of injunction restraining alienation of the property shall not be entered in Book 1 maintained at the Sub Registry. In Mary v. Issac (2014 (1) KLT 923), this Court held that though there is no provision to communicate the orders restraining alienation of immovable properties to the office of the Sub Registrar concerned, with a view to prevent the litigants from violating such orders, the same can be ordered to be communicated to the concerned Sub Registry by the court, in exercise of the inherent powers. However, if the registering officers take the stand that only the particulars of the orders provided for in Section 89(5) of the Act will be entered in Book 1, no purpose would be served by merely communicating the orders to the Sub Registrar concerned, unless there is a direction to enter the particulars of the order in Book 1 maintained at the Sub Registry. In the aforesaid circumstances, we are of the view that to meet the ends of justice, a civil court passing an order of injunction restraining alienation of a specific immovable property, in exercise of the powers under Order XXXIX Rule 1 of the Code of Civil Procedure can certainly direct such orders to be communicated to the Sub Registry concerned with a direction to enter the particulars of the order in Book 1. However, in such cases, when the suit or appeal or the proceedings wherein the interim order of injunction restraining alienation is passed terminates and the interim order is vacated the said fact also should be communicated with a further direction to make a similar entry in Book 1. 5. In the result, I.A. No. 2734 of 2014 is allowed and the Registry is directed to communicate the orders of injunction issued by this Court on 27/8/2013 and on 28/2/2014 in I.A. No. 1796 of 2013 together with a memorandum describing the property, to the Sub Registrar, Chevayoor, with a direction to file the copy of the memorandum in Book 1. The Registry is also directed to communicate a copy of this order to the Chief Secretary to the Government so as to enable the Government to consider introducing appropriate amendments to the Act to take care of the situation dealt with in this order.