V.P. Mahesh vs State Of Kerala on 20 November, 2007

Kerala High Court
V.P. Mahesh vs State Of Kerala on 20 November, 2007




WP(C) No. 26792 of 2007(M)

                      ...  Petitioner


                       ...       Respondent




                For Petitioner  :SRI.R.S.KALKURA

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice ANTONY DOMINIC

 Dated :20/11/2007

 O R D E R
                     ANTONY DOMINIC, J.
                 W.P.(C) NO. 26792 OF 2007 M

          Dated this the 20th day of November, 2007

                         J U D G M E N T

Petitioner had purchased a property having an extent of

7.25 ares in a public auction conducted by the South Indian Bank

Ltd, Thiruvalla Branch, to which the property was mortgaged.

Ext.P1 is the sale certificate issued by the Authorised Officer of

the Secured Creditor Bank. Petitioner submits that thereafter, he

had applied to the 3rd respondent-Tahsildar to effect mutation of

the property in his name and thereupon Tahsildar obtained legal

opinion from the Additional Government Pleader, who opined that

if there is no appeal pending against the order of the Debts

Recovery Tribunal, mutation could be effected.

2. In view of this, a certificate from the Debts Recovery

Tribunal that no appeal was pending was directed to be produced

and the petitioner made a request to the Registrar, Debts

Recovery Tribunal, Ernakulam for a certificate. To this, he got

Ext.P6 reply stating that there is no provision to issue a

certificate as required by the petitioner. However, the Bank

issued Ext.P5 letter stating that there is no appeal pending in

respect of the property covered by Ext.P1 sale certificate. Even

WPC 26792/07
: 2 :

thereafter, mutation was not effected and hence this writ petition

was filed praying for directing respondents 3 and 4 to effect

mutation in respect of the property covered by Ext.P1 sale


3. On behalf of the respondents, Government Pleader

entered appearance and 3rd respondent states that an application

for effecting mutation in his name was made by the petitioner to

the 4th respondent. In para 4 of the counter affidavit, he has

given a list of 13 civil cases, which are pending in the Munsiff’s

Court, Thiruvalla, Sub Court, Thiruvalla and Sub Court,

Kottayam. It is stated that in some of these cases, attachment

orders have also been passed by the Civil Court. According to

the 3rd respondent, it is only on account of the pendency of these

litigations that they were not in a position to effect mutation of

the property. It is also stated that the Bank took possession of

the property without the knowledge of the 2nd respondent, as

stipulated in Section 13 of the Securitisation and Reconstruction

of Financial Assets and Enforcement of Security Interest Act,

2002. On going through the said provision, I do not find any

WPC 26792/07
: 3 :

obligation on the part of the Bank to have taken possession only

with the knowledge of the respondents.

4. Counsel for the petitioner only sought for a direction to

the 3rd respondent to consider the application made by the

petitioner for effecting mutation in his name on the strength of

Ext.P1. He would submit that the 3rd respondent is bound to take

a decision on the application made by him.

5. The petitioner submits that the 3rd respondent has not

passed an order on the application made by him for effecting

mutation in his name. However, counter affidavit discloses that

the application was in fact made to the 4th respondent-Village


6. The fact that certain civil cases are pending in respect

of the property with interlocutory orders including attachment, it

need not stand in the way of the respondents 3 and 4 from

considering the application filed by the petitioner for mutation. As

rightly pointed out by the counsel for the writ petitioner, the

procedure in this behalf is laid down in the Transfer of Registry

Rules, 1966. Rule 16 of the said rule provides that even if

WPC 26792/07
: 4 :

mutation is effected in the name of the petitioner, that will not

affect the legal rights of any person in respect of the lands

covered by the application for carrying out mutation in his favour.

The rule makes it clear that the question of legal rights in respect

of the property is always subject of adjudication by Civil courts

and pattas will be revised from time to time in accordance with

judicial decisions. Therefore, prima facie, it would appear that

inspite of the pendency of the suits before the Civil Courts,

mutation can be effected by the respondents.

7. In the nature of the relief that is sought by the

petitioner, a final adjudication on the permissibility of effecting

mutation in the petitioner’s favour is not called for at this stage.

In terms of the provisions of the rules, 3rd respondent is obliged

to take a decision on the application made by the petitioner for

effecting mutation. Although petitioner has submitted an

application in this behalf immediately after Ext.P1 sale certificate

was issued, admittedly, a decision in this regard has not been

taken. If a decision is taken, which is adverse to the petitioner,

the petitioner has a right to pursue the same before the

WPC 26792/07
: 5 :

appropriate authorities as per Rule 18 of the Rules. In this case,

it is noticed that according to the 3rd respondent an application

for effecting mutation was received by the 4th respondent.

However, since the application is still pending without orders, and

as the 3rd respondent is the appropriate authority in terms of the

Rules, the 4th respondent can transmit the application of the

petitioner to the 3rd respondent for appropriate orders.

8. Accordingly, I dispose of this writ petition directing

that within three weeks from the date of receipt of a copy of this

judgment, the 4th respondent shall transmit the application for

effecting mutation submitted by the petitioner to the 3rd

respondent. On receipt of the application as directed above, a

final decision in this matter shall be taken by the 3rd respondent

as expeditiously as possible, at any rate within two weeks of

receipt of the application.

Petitioner shall produce a copy of this judgment before the

3rd and 4th respondents for compliance.



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