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B.N.Rajamohamed (advocate / commissioner of oaths)     23 March 2009

Can I file Writ of Mandamus

I have sent a representation to the subregistrar to record an encumberance on the properties of my opponent client as he is indebted to my clien t to the tune of Rs.65 lakhs for which a cheque bouncing case is pending before the magistrate court. As there is no response can I file a writ of mandamus directing the subregistrar to record a encumberance on the properties of my opponent client? He already sold 3 properties but he didnot utilise the sale proceeds to settle the debt if he is allowed to sell some other propeties he will repeat the same and also he has planned to escape out of india.

Can I file a writ in the form of mandamus?



Learning

 10 Replies

N.K.Assumi (Advocate)     23 March 2009

Why not avail the appeal forum before the District Registrar first?

Shashikant V. Patil (Lawyer)     23 March 2009

Why not to get a a court order to prohibit his sell his property in order to recover the loan given ? 

N.K.Assumi (Advocate)     23 March 2009

Yes, you can also file an application for injunction from selling the property.

ravikumarbcombl (advocate)     23 March 2009

Yes Mr.Rajamohamed, directing the subregistrar is not possible unless you are getting an order for injunction in order to restrain the party to sell the property.....  once you will come to know about the party already sued for cheque bouncing... and he is trying to abscond then immediately u can file for injunction as Mr.Assumi said... then only you can approach the Registrar to encumber the property.... otherwise for mere cheque bouncing and have the case in this regard is not a valid point to attach his property and instruct the registrar.....he is not at all liable to do so.. without a proper order from the court... to encumber one's property for this reaons...... you can go and try under bankruptcy law... isn't it ?????

Badal Dayal Advocate (Advocate)     23 March 2009

Helo,


Why dont you file summary suit against indebted person, their is supreme court judgement in this regard that you can file complaint u/s 138 NIA as well as suit to recover indebted amount. Thereafter you can file execution thereof. Moreover meanwhile you can also take Injunction against that person submit copy thereof to concerned registrar so that he can't sell out his property. You can also publish in newspaper etc. after getting injunction against that person in this regard.


R'gards

Ashey   23 March 2009

 unless you have got a charge over the property or any oder from the court restraining the debtor from in anyway alienating or encumbering the property or any right over the property , the Sub Register cannot be directed to record an encumbrance and hence your writ will be dismissed

Prabhat Kumar (Advocate)     23 March 2009

Writ is an extra ordinary remedy which can be availed only if the normal remedy is not available. You should file for suit for recovery along with an applicaiton for attachment of the property before decree. there is a specific provision in the CPC and the property can be attached.  

Uma parameswaran (lawyer)     23 March 2009

File a civil suit  according to the jurisdiction and avail  of Court Order against the disposal of the property.

Swami Sadashiva Brahmendra Sar (Nil)     23 March 2009

other learned friends are also right.


but you can certainly file a writ petition if there is a legal duty on subregistrar to record incumburances. pls specify, under what provision you have sent representation .

Swami Sadashiva Brahmendra Sar (Nil)     23 March 2009

you may find some indication in my article "writ of mandamus - some guidelines" posted in article column of this club. for detailed discussion and case law you may contact me directly -


Dr. V.N. Tripathi


email: dr.vntripathi@yahoo.com  Mob. 9839527421 ph. 0532-2545245


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