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2017 (4) TMI 1547 - KERALA HIGH COURTRegistration of sale certificate - attachment order for same property passed by Sub Ordinate Judges Court - whether the sale certificate produced by the petitioners is liable to be registered by the first respondent, in view of the attachment order passed by the Sub Ordinate Judges Court, Ernakulam? - HELD THAT:- The facts and circumstances of the case reveal that the mortgage was executed by depositing the title deed of the property in question in the year, 2005. The property was purchased by the first petitioner in the auction proceedings in accordance with law on 10.10.2014. However, the attachment in question was secured in the suit proceedings in a suit filed in the year, 2016. Therefore, it is unequivocally clear that a charge was created over the property much prior to securing the attachment of the property in the year, 2016. The sale proceedings also took place prior to the attachment ordered by the court. It is convincingly clear that, there is no order passed by the Sub Registrar enabling the petitioners to prefer an appeal under Section 72. Moreover it is well settled and apposite that merely because there is a statutory remedy available under law, the right conferred on the petitioner under Article 226 of the Constitution of India cannot be taken away, if and when there are sufficient grounds for the petitioner to resort to the said constitutional provision. When a law is laid down by this Court in respect of the issue of registration of documents on the basis of SARFAESI proceedings, Government functionary is duty bound to follow the same. When such a course is not adopted, the action of the statutory authority becomes illegal and arbitrary - petitioners are entitled to invoke the jurisdiction conferred on this Court under Article 226 of the Constitution of India. The petitioners are entitled to succeed in this writ petition - petition allowed.
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