T.Kuthalingam vs The District Registrar

Court
Madras High Court

WP(MD) No. 19335 of 2026
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 28.10.2026
PRONOUNCED ON: 04.11.2026
CORAM
THE HON'BLE MR. JUSTICE K.KUMARESH BABU
WP(MD) No. 19335 of 2026
CNR:{HCMD010917072026}
T.Kuthalingam
..Petitioner(s)
Vs
1. The District Registrar,
Office of the District Registrar Office,
Tenkasi Registration District,
Tenkasi District-627 811.
2. The Sub Registrar,
Office of the Surandai Sub Registrar Office,
Surandai, Tenkasi District 627 854.
3. Indian Bank,
Rep by its Authorized Officer,
No.68A, 184, Kannimaramman Kovil St,
Tenkasi Branch, Tenkasi District 627 811.
4. C.Arulraj
5. M.Jayaraj
..Respondent(s)
PRAYER: Writ Petition, filed under Article 226 of the Constitution of
India, praying this court to issue a Writ of Certiorarified Mandamus
nd
calling for the records to the impugned refusal check slip issued by the 2
respondent in RFL/Surandai/109/2026 dated 02.06.2026 to quash the
nd
same as illegal, arbitrary and unconstitutional and direct the 2
respondent to register the petitioner’s settlement deed dated 02.06.2026
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WP(MD) No. 19335 of 2026
relating to the property measuring to an total extent of 24 cents in Survey
No.407B/2, Re-Surevy No.407B/2A1 Surandai-1 Village,
Veerakelamputhur Taluk, Tenkasi District and consequential direction to
nd th
the 2 respondent to efface/delete the adverse attachment entry of the 5
respondent relating to the above said property in the Encumbrance
Certificate within the limited time in the light of the order passed by the
Hon’ble Division Bench of this High Court in W.P.(MD)No.674 of 2023
dated 31.08.2023.
For Petitioner :Mr.I.Abrar Mohamed Abdullah
For R1 and R2 :Mr.S.Venkatesh
Additional Government Pleader
For R3 :Mr.C.Karthik
For R4 :No appearance
For R5 :Mr.A.Balakrishnan
ORDER
The present Writ Petition has been filed in the nature of a Writ of
Certiorarified Mandamus challenging the impugned refusal check slip
issued by the second respondent, dated 02.06.2026 and for a
consequential direction to direct the second respondent to delete the
adverse attachment entry of the fifth respondent relating to the subject
property in the encumbrance certificate.
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WP(MD) No. 19335 of 2026
2. Heard the learned Counsel on either side.
3. The learned Counsel for the petitioner would submit that the
fourth respondent had owned immovable properties, which were
mortgaged with the third respondent through execution of memorandum
of deposit of title deed. The said loan was declared as non-performing
asset and proceedings were issued under the SARFAESI Act, in which
the properties were brought under auction and the petitioner had
purchased the same by offering a valid sale consideration. He would
further submit that pursuant to which, a sale certificate was also issued
and he is in peaceful possession and enjoyment of the property.
4. While that be so, a settlement deed was sought to be executed by
the petitioner in favour of his son and when the same was presented for
registration, the impugned refusal check slip had been issued by
indicating that the property was the subject matter of an attachment in a
civil suit. He would further submit that the properties, which were the
subject matter of mortgage by way of memorandum of deposit of title
deeds, had been sold in a public auction and that there would be a priority
of claim over the said property, which had been reiterated by Hon'ble
Division Benches of this Court and had relied upon the following
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WP(MD) No. 19335 of 2026
judgments of the Hon'ble Division Bench of this Court in support of his
contentions:
1) W.P.(MD)No.674 of 2023 , dated 31.08.2023 in the case of
Cholamandalam Investment and Finance Company Limited -vs.-
District Registrar, Registration Department and others;
2) W.P.(MD)No.28500 of 2022 , dated 02.08.2023 in the case of
M/s.Siva Automative Trading Private Limited -vs.- the Sub Registrar,
Othakadai Sub Registrar Office and others ; and
3) 2023 SCC OnLine Mad 8940 in the case of Cholamandalam
Investment and Finance Company Limited -vs.- District Registrar,
Registration Department and others .
5. Hence, he would submit that the impugned refusal check slip
issued for a property which was the subject matter of the sale certificate
that had been registered with the Registration Department by relying
upon an earlier mortgage was wholly ill-founded and therefore, seeks
indulgence of this Court.
th
6. The learned Counsel for the 5 respondent would submit that the
fourth respondent had borrowed money from the fifth respondent under a
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WP(MD) No. 19335 of 2026
promissory note and that the fifth respondent had instituted a suit against
the fourth respondent, in which a decree came to be passed and further ,
inter alia pending the suit, an interim attachment had also been made. He
would submit that the subject property was also the subject matter of
execution petition and in the said execution petition, two cents of lands
have also been sold to a third party for a full satisfaction of the decreetal
amount and in that regard, he would submit that a third party interest had
been created and the said third party also ought to have been made as a
necessary party in this Writ Petition. He would submit that therefore, the
petitioner cannot claim any exclusive right in execution of a settlement
deed in favour of his son and hence, he prays to dismiss this Writ
Petition.
7. The learned Government Advocate submit that since there is a
pre-existing mortgage, the petitioner cannot be permitted to execute a
document, which would create multiplicity of proceeding and hence,
prays this Court to uphold the order impugned in this Writ Petition.
8. I have carefully considered the submissions made on either side
and perused the materials available on record.
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WP(MD) No. 19335 of 2026
9. There is no dispute as regards to the mortgage created by the
fourth respondent in favour of the third respondent. The said mortgage
was supported by a deposit of title deed on various dates starting from
2009 to 2017. This had created a pre-existing right with the third
respondent. Even though the contention of learned Counsel for the
petitioner that there would be priority of right of a mortgaged property in
view of Section 26E of the SARFAESI Act, as interpreted by the Hon'ble
Division Benches of this Court in the judgments relied upon by the
petitioner, referred supra, it is further to be noted that an interim
attachment in a pending civil suit will also not extinguish a pre-existing
right created by a registered document. This is explicit from the
provision of Section 64(2) of CPC r/w Order 38 Rule 10 CPC.
10. Hence, this Court is of the view that the third respondent Bank,
which had a pre-existing right by way of memorandum of deposit of title
deeds in support of its mortgage, read with Section 26E of the
SARFAESI Act, has priority. It is therefore discernible that the order of
attachment relied upon by the second respondent for issuing the
impugned refusal check slip is wholly erroneous.
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WP(MD) No. 19335 of 2026
11. That apart, admittedly, when the suit had been decreed ex parte
and an execution petition had also been terminated, the sale of a portion
of the property cannot whittle out the pre-existing right with the third
respondent in view of the discussion supra. Further, it is to be noted that
the suit was based upon a promissory note executed on 01.07.2018. From
the decree of the Court below, it could also been seen that the plaint was
presented on 13.08.2018, wherein, the fourth respondent remained ex
parte . Further, it is also to be noted that the suit had been filed within a
period of 43 days from the date of execution of the promissory note and
the conduct of the fourth respondent remaining ex parte would only drive
this Court to the conclusion that the suit was filed in a collusive manner
only to defeat the rights of the third respondent. It is for the third party to
work out his remedy against the fourth and fifth respondents, as this
Court is of the view that the sale in the execution proceeding had also
been only pursuant to a collusive suit filed by the fifth respondent as
against the fourth respondent. In that regard, this Court has no hesitation
in setting aside the order impugned in this Writ Petition.
12. Accordingly, this Writ Petition stands allowed and the
impugned refusal check slip issued by the second respondent, dated
02.06.2026 is set aside and the petitioner is directed to re-present the
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WP(MD) No. 19335 of 2026
document and on such re-presentation, the second respondent is directed
to proceed with the registration of the document, if it is otherwise in
order. There shall be no order as to costs.
04-11-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
cmr
To
1. The District Registrar,
Office of the District Registrar Office,
Tenkasi Registration District,
Tenkasi District-627 811.
2. The Sub Registrar,
Office of the Surandai Sub Registrar Office,
Surandai, Tenkasi District 627 854.
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WP(MD) No. 19335 of 2026
K.KUMARESH BABU, J.
cmr
order made in
W.P.(MD)No.19335 of 2026
04-11-2026
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