JUDGMENT : [WP(C) 34771/2017 This writ petition is filed by the petitioner seeking the following reliefs: (i)Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to accept tax in respect of 11.730 cents of property in survey No.1327/3 and 1327/4 of Poonithura village, Ernakulam District, more appropriately described in Ext.P1. (ii) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 and 2 to remove the attachments noted in Ext.P7 from the concerned registers in the office of the Sub Registrar, Maradu in respect of 11.730 cents of property in survey No. 1327/3 and 1327/4 of Poonithura village, Ernakulam District, more appropriately described in Ext.P1. (iii)Issue an interim direction directing the respondents to accept tax in respect of 11.730 cents of property in survey No.1327//3 and 1327/4 of Poonithura Village, Ernakulam District, more appropriately described in Ext.P1. (iv) Award costs and (v) Any other relief this Hon'ble court deems fit.” 2. Few facts need mention infra for disposal of this petition. The petitioner is the absolute owner in possession of an extent of 11.730 cents comprised in survey No.1327/3 and 1327/4 of Poonithura Village, Ernakulam District. He purchased the property on 6.12.1993 from one Smt. Lissamma Tomy, while he was working abroad, as per sale deed No.5021 of 1993 of Sub Registrar's Office, Maradu (Ext.P1). He obtained encumbrance certificate for the period from January 1980 till 1993 and mutation was effected and tax was paid. After his return from abroad, as he was facing huge financial crisis he decided to alienate the property and so, to facilitate the transaction of the property he approached the village authorities to clear off the arrears of property tax but, it was not received due to the absence of the latest encumbrance certificate. Immediately, he obtained Ext.P7 encumbrance certificate. Then, it was realized that two liabilities were noted in the certificate, (1) with respect to an attachment effected in O.S.No.542/2001 of the Sub Court-I, Ernakulam filed by a company by name 'Annamalai Finance Ltd'. (for short 'the company') against his property as if Smt. Lissamma Tommy who is the 3rd defendant in the suit is the owner of the property. and (2) with respect to the very same suit that is O.S.No.542/2001 as if, a suit was filed by one 'Annamma' against the very same defendants. (for short 'the company') against his property as if Smt. Lissamma Tommy who is the 3rd defendant in the suit is the owner of the property. and (2) with respect to the very same suit that is O.S.No.542/2001 as if, a suit was filed by one 'Annamma' against the very same defendants. On further enquiry it was revealed that the second attachment noted was the result of an inadvertent mistake. There was no suit as filed by 'Annamma' against Smt. Lissamma Tommy and others as noted in the certificate. Actually, the petitioner had purchased the property on 6.12.1993 from Smt. Lissamma Tommy for valuable consideration and at that time there was no attachment from any court with respect to the property and when attachment was effected he was the owner of the property, as the property was transferred much before the suit filed in the year 2001. O.S 542/2001 filed by the company against Smt. Lissamma Tommy and others was dismissed and the attachment ceased. But, even now he is prevented from paying tax in respect of the property. He is unable to deal with his property because of the attachment noted in the encumbrance certificate and hence he approached this Court with this Writ Petition. 3. Heard Sri.B.Krishna Mani, the learned counsel for the petitioner and Sri.B.R.Muraleedharan, the learned Government Pleader. 4. During the pendency of this petition, as per an order dated 5.12.2017 the petitioner was permitted to remit the property tax subject to the result of R.F.A.No.50/2005 filed against the judgment and decree in O.S.542/01 and thereafter he had remitted tax for the property. It is discernible from the records that the company by name 'Annamalai Finance Ltd' had filed a suit for realization of money in the year 2001 against three defendants viz ; Sri. Abraham Jacob, Sri.Tomy Antony and Smt.Lissamma Tomy and it was numbered as O.S.No.542/2001. After filing of the suit before the Sub Court, Ernakulam the name of the company was changed as 'M/s. Shiv Taxyarn Ltd' and that was reported to the court and necessary amendments were carried out including the cause title of the suit. Abraham Jacob, Sri.Tomy Antony and Smt.Lissamma Tomy and it was numbered as O.S.No.542/2001. After filing of the suit before the Sub Court, Ernakulam the name of the company was changed as 'M/s. Shiv Taxyarn Ltd' and that was reported to the court and necessary amendments were carried out including the cause title of the suit. It is further revealed from the records that in the suit filed by the company as O.S.No.542/2001 on 17.9.2001, an order of attachment under Order 38 Rule 5 C.P.C was passed against the property of the petitioner as if the property was owned and possessed by Smt. Lissamma Tomy, the 3rd defendant therein. The attachment order was communicated to the Sub Registrar's Office concerned on 9.10.2001. The records would clearly indicate that actually the writ petitioner had purchased the property owned by Smt. Lissamma Tomy, the 3rd defendant as early as on 6.12.1993 for consideration. The order of attachment before judgment, passed in the suit filed against Smt. Lissamma Tomy and others, was on 17.9.2001 and the attachment was effected on 9.10.2001. The attachment effected with respect to the property was much after the purchase of the property by the petitioner from Smt. Lissamma Tomy and in fact when the attachment was ordered, she was not the owner holding title or possession of the property. It is also pertinent to note that the suit filed by the company against the defendants was dismissed on 5.6.2004. But it appears that no order withdrawing the attachment was passed on dismissal of the suit and the court below had failed to intimate the SRO concerned treating the attachment as ceased on dismissal of the suit, causing all sorts of miseries and difficulties to him in dealing with his property. Admittedly, no attachment was ordered in the appeal now pending before this court. 'Annamalai Finance Ltd'(M/s. Shiv Taxyarn Ltd) was the plaintiff in O.S.542/2001. Regarding the 2nd attachment, the case number referred was one and the same. It is so obvious that the name of the company was mistakenly written as 'Annamma' again and no suit could be filed by the so called 'Annamma' or any other person in the very same number against the defendants therein and there was no such suit. Regarding the 2nd attachment, the case number referred was one and the same. It is so obvious that the name of the company was mistakenly written as 'Annamma' again and no suit could be filed by the so called 'Annamma' or any other person in the very same number against the defendants therein and there was no such suit. Hence, it is doubtless that the 2nd attachment shown as item 3 in Ext.P7 encumbrance certificate was with respect to the very same case and it could only be an inadvertent mistake or error occurred somehow or other in the entry made in the certificate, as pointed out by the learned counsel for the petitioner. 5. Though, the petitioner is the owner of 11.730 cents of land in Survey Nos.1327/3 and 1327/4 of Poonithura Village as per Ext.P1 sale deed No.5021 of 1993 of Sub Registrar's Office, Maradu and the 3rddefendant (Smt. Lissamma Tomy)had absolutely no title or possession over the property as she ceased to be the owner of the property on execution of the sale deed dated 6.12.1993, the order of attachment before judgment passed in the suit filed against her and others is still in force, is the grievance of the petitioner. It is surprising that the court below passed an order of attachment before judgment with respect to a property owned by a stranger to the suit though the trial court is supposed to pass an order only if the circumstances exist to the satisfaction of the court, after proper verification of the affidavits in support of the petition moved for the attachment. It is well settled that a mechanical approach on vague allegation is not expected before passing an order of this nature. Suffice it to say that the attachment order in the money suit under Order 38 Rule 5 C.P.C was on 17.9.2001 against the property of a defendant which was sold by her in the year 1993. It is also admitted by the learned counsel for the company that no attachment order was passed in the appeal (R.F.A.No.50/2005) pending against the judgment and decree before this Court. Therefore, this petition is only to be allowed as prayed for. 6. It is also admitted by the learned counsel for the company that no attachment order was passed in the appeal (R.F.A.No.50/2005) pending against the judgment and decree before this Court. Therefore, this petition is only to be allowed as prayed for. 6. When a suit is dismissed the attachment made before judgment will have to be withdrawn under Order XXXVIII Rule 9 C.P.C and then it is the responsibility or bounden duty of the trial court to communicate the order to the SRO concerned. Before going into Order XXXVIII Rule 9 C.P.C it is relevant to extract Order XXXVIII Rule 5 C.P.C which deals with attachment before judgment as: “Order XXXVIII Rule 5. ''Where defendant may be called upon to furnish security for production of property.-(1) Where, at any state of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that my be passed against him,- (a) is about to dispose of the whole or any part of his property, or (b)is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sums as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof. (3) The court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. (4) If an order of attachment is made without complying with the provisions of sub-rule(1) of this rule, such attachment shall be void.” 7. A reading of this provision makes it clear that the sole object is to give an assurance or guarantee to the plaintiff who filed the suit that if a decree is passed in his/her favour it would be satisfied and the defendant can not transfer his/her property with an intention to delay or defeat the decree. A reading of this provision makes it clear that the sole object is to give an assurance or guarantee to the plaintiff who filed the suit that if a decree is passed in his/her favour it would be satisfied and the defendant can not transfer his/her property with an intention to delay or defeat the decree. Therefore, to avoid alienation of the property by the defendant to defraud or delay the claim of the plaintiff an order of attachment can be passed and thus the defendant can be prevented from dealing with his property. However, it is well settled that courts should be very cautious while passing such an order and shall not act on vague allegations or a mechanical approach will not serve the purpose. Order 38.Rule 9 reads as: “9. Removal of attachment when security furnished or suit dismissed.- Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the cost of the attachment, or when the suit is dismissed.” Order XXI Rule 57 C.P.C deals with attachment of properties but is in a different situation where attachment is effected in execution of a decree. It reads as follows: “57. Determination of attachment.-(1) Where any property has been attached in execution of a decree and the Court, for any reason, passes an order dismissing the application for the execution of the decree, the Court shall direct whether the attachment shall continue or cease and shall also indicate the period upto which such attachment shall continue or the date on which such attachment shall cease. (2) If the court omits to give such direction, the attachment shall be deemed to have ceased.” 8. (2) If the court omits to give such direction, the attachment shall be deemed to have ceased.” 8. In Prakashan v. Clement ( 2015 (1) KLT 151 ) a Learned Judge of this Court while dealing with a question whether an order of attachment before judgment passed in a suit dismissed for default will survive when the suit is restored and subsequently decreed and whether the property can be sold in execution of the decree if the same was alienated after dismissal of the suit for default before restoration that is during the period when the suit stood dismissed observed in Para 11 as: ''.......So a duty is imposed on the court to withdraw the order of attachment, at the time of dismissal of the suit ,to make cessation of attachment made earlier on record......'', Further it was held in para 13 as : ''13. …....... Going by Order 21 Rule 57 of the C.P.C. where any property has been attached in execution of a decree and the court for any reason passed an order dismissing the application for the execution of the decree, the court shall direct whether the attachment shall continue or cease and shall also indicate the period up to which such attachment shall continue or the date on which such attachment shall cease. Further, sub-rule (2) of Rule 57 of Order 21 of the C.P.C. provides a clarification that if the court omits to give such direction, the attachment shall be deemed to have ceased. Here, it is pertinent to note that at the time of dismissal of the Execution Petition, the Execution Court has an option to direct whether the attachment shall continue or cease or cessation of attachment is postponed. Such an option given to the Execution Court necessitated the clarification under sub-rule (2) that if the court omits to give such a direction, the attachment shall be deemed to have ceased. But, when coming to Order 38 Rule 9 of the C.P.C., the trial court which passes an attachment before judgment is not provided with such an option as provided under sub-rule (2) of Rule 57 of Order 21 of the C.P.C. either to continue the attachment or cease the attachment or to postpone the cessation of attachment. But, when coming to Order 38 Rule 9 of the C.P.C., the trial court which passes an attachment before judgment is not provided with such an option as provided under sub-rule (2) of Rule 57 of Order 21 of the C.P.C. either to continue the attachment or cease the attachment or to postpone the cessation of attachment. It is pertinent to note that the expression 'shall' which imposes a duty on court is employed and the parties to the suit is not burdened with any move to withdraw the attachment. By the imposition of a statutory mandatory duty on the court alone, it is also implied in the said Rule that if the court omits to pass such an order withdrawing the attachment made before judgment, it shall not be deemed to have continued, notwithstanding the dismissal of the suit. Since the trial court has no option other than withdrawing the attachment order passed before judgment, no further clarification is not required as seen under Order 21 Rule 57(2) of the C.P.C.'' 9. Keeping in view the facts emerging from the record it is clear that at the time of filing of the suit, the 3rd defendant was not the title holder of the property. The trial court committed a serious error by ordering attachment before judgment with respect to a property not owned by the defendants. It needs to be underlined that the trial court had committed a more serious error by not withdrawing the attachment on dismissal of the suit and communicating the same and thus much injustice and prejudice was caused to the petitioner. Of-course, every courts should have a passion for doing justice but it should not be propelled by vague instigation. Before passing an order of attachment before Judgment the first thing the court has to verify is, whether the party/plaintiff in all fairness could establish before the court that the property sought to be attached belongs to the defendant to secure the decree that may be passed in his favour. The court is duty-bound to ascertain, convince and satisfy the said fact to assure that injustice is avoided, as the order will be passed in most of the cases without giving the opposite party an opportunity of hearing. The court is duty-bound to ascertain, convince and satisfy the said fact to assure that injustice is avoided, as the order will be passed in most of the cases without giving the opposite party an opportunity of hearing. The very usage of the words such as “is about to dispose of the whole or any part of his property or”, “is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court” employed in Order XXXVIII Rule 5 CPC clearly mandates that the court has to satisfy that it is the property of the defendant, sought to be attached to secure the decree to protect the interests of the plaintiff. Then only the other conditions prescribed under Order XXXVIII Rule 5 CPC have to be followed before passing an order to secure and assure the plaintiff that the fruits of the decree could be enjoyed. Otherwise, the court is not justified in passing orders affecting the rights of the parties not before the court as such, by preventing or restricting them from dealing with their properties and hence, such power has to be exercised with extreme care and caution. 10. As mentioned above under Order XXXVIII Rule 9 C.P.C the Court shall withdraw the attachment when security is furnished or when suit is dismissed. It is important to note that in such situations also the court should be conscious of the position and without any delay the order of withdrawing/lifting the attachment shall be passed. The court shall also ensure that the order is communicated to the Office of the Sub-Registrar (SRO) concerned without any delay. A conjoint reading of Rule 185 of the Civil Rules of Practice (for short ' the CRP') and Order XXXVIII Rule 9 C.P.C. makes it crystal clear that communication to the registering authority shall be made with due application of mind, without delay, otherwise it would adversely affect the rights and interest of the person against whom the order of attachment was ordered. Rule 185 of the CRP is extracted below for easy reference: “185.Communication of Judgment, decree or order to the Registering Authority:- Every Court, - (a) passing a decree or order for the cancellation of an instrument registered under the law relating to the registration of documents; (b) pronouncing any judgment or passing 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; (c) varying, reversing or setting aside any such judgment, decree or order; and (d) passing an order for the attachment of immovable property or for the release of any immovable property from attachment, shall send a copy of such judgment, decree or order, on plain paper, verified as correct, together with a memorandum describing the property, as far as may be practicable in the manner required by Section 21 of the Registration Act, 1908 (Central Act 16 of 1908) to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such judgment, decree or order is situated.” The court exercising such power should bear in mind that the intimation regarding withdrawing/lifting of attachment shall be forwarded to the SRO concerned then and there, even if no fee/batta for communication is remitted otherwise, the victim may be an innocent person and he cannot be compelled to face the hardship or predicament of running pillar to post to deal with his property. In fact this case is a classic example for such a predicament which happened only because the matter was dealt with by the trial court in a causal manner. The petitioner who acquired the property with his hard earned money had to suffer much mental agony beyond imagination due to a mistake or omission/error on the side of the trial court in attaching the property, then not withdrawing the order of attachment and communicating the order of withdrawal of attachment to the SRO concerned on dismissal of the suit. It also appears that the plaintiff had illegally sought for attachment of the property sold by the 3rd defendant long back by filing a vague affidavit without proper verification or suppressing the real facts. The Law of Torts has to be developed and enlarged to meet similar situations in India. 11. It also appears that the plaintiff had illegally sought for attachment of the property sold by the 3rd defendant long back by filing a vague affidavit without proper verification or suppressing the real facts. The Law of Torts has to be developed and enlarged to meet similar situations in India. 11. It is worth while to note that Rule 397 of the CRP deals with the registers to be maintained by the civil courts. Though, as item No. 42 in Rule 397 of the CRP, Civil Register of immovable attached and sold is prescribed to be maintained in Nazir's Establishment, it is regarding the lands attached in execution of decree and not with respect of the properties attached before Judgment. Of-course when a suit is disposed of all the connected interlocutory applications will also be disposed of and entered in Civil Register No.9 as per Rules. But, unfortunately as such there is no separate register prescribed by the Rules to make entries with details regarding the orders of attachment before judgment, passed in suits. Of-course, Civil Register No.30A is prescribed for certain communications under the Registration Act. From the entries in the register itself it could be gathered that all communications required under Section 89 (5)(a)(b) of the Registration Act have to be entered in the register and that the communications will go only if the prescribed batta/fee is remitted. Sometimes a plaintiff may not be interested to remit batta/fee promptly. Therefore, by way of abundant caution maintaining a separate register setting forth the details of the properties attached before judgment alone, would have a good effect and if so necessary intimations/communications could directly be forwarded from the court, when the infrastructure of the courts have developed considerably. That will of-course protect the interest of persons who are not before the court but where their properties are some how or other involved. Definitely, it would help to avoid these type of contingencies. In fact, it would fully sub-serve the object of the provisions as well avoid hardship or absurdity like one faced by the petitioner in the case at hand. Such entries in a separate register will definitely help the officers of the court to verify whether the orders lifting/withdrawing attachment before judgments are ordered and timely communicated to the SRO concerned. In fact, it would fully sub-serve the object of the provisions as well avoid hardship or absurdity like one faced by the petitioner in the case at hand. Such entries in a separate register will definitely help the officers of the court to verify whether the orders lifting/withdrawing attachment before judgments are ordered and timely communicated to the SRO concerned. It needs special emphasis to state that courts are duty bound to exercise the power under Order XXXVIII Rule 5 CPC as well Order XXXVIII Rule 9 CPC judiciously in all fairness with extreme care and caution, and also follow Rule 185 of the CRP strictly, otherwise it would result in miscarriage of justice. 12. Therefore, the respondents 1 and 2 are directed to remove the attachment noted in Ext.P7 from the registers in the office of the Sub-Registrar, Maradu with respect of 11.730 cents of property in Survey No.1327/3 and 1327/4 of Poonithura Village which stands in the name of the petitioner and the village officer concerned is directed to accept the property tax. Accordingly, the Writ Petition is allowed with no order as to costs. (Registry shall forward the copy of this Judgment to all the Subordinate Courts.)