WP.No.23417 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
WP.No.23417 of 2013
Rajeshwari [Deceased]
Mr.Rajesh
[impleaded as per the Order in M.P.No.
1 of 2015 in W.P.No.23417of 2013,
dated 09.09.2022 by NSKJ] ... Petitioner
Vs
1. The Inspector General of Registration,
Santhome, Chennai.
2. The Sub Registrar,
Madurantakkam Sub Registrar Office,
Madurantakkam.
2. Suguna
[R3 impleaded as per Order dated 08.10.2013
by KKSJ in M.P.No.1 of 2013 in W.P.No.
23417 of 2019] ... Respondents
Prayer:- This Writ Petition is filed, under the Article 226 of Constitution of
India, to issue a Writ of Certiorarified Mandamus to call for the records of
the second respondent in his impugned Order dated 19.07.2013 in Ref.
No.A.thi.Mu returning the Court Decree dated 30.12.2004 passed in
1/14
https://www.mhc.tn.gov.in/judis
WP.No.23417 of 2013
O.S.No.363 of 2004 passed by the learned District Munsif,
Madurantakkam presented by the petitioner for registration and to quash
the same and direct the second respondent to permit the petitioner to
present the above Court decree dated 30.12.2014 and to register the same.
For Petitioner : Mr.N.Nagu Sah
for Mr.V.Raghavachari
For Respondents : Mr.S.Ravi Kumar, Spl. G.P. - R1 & R2
ORDER
This Writ Petition has been filed to quash the impugned Order dated 19.07.2013 returning the Court Decree dated 30.12.2004 passed in O.S.No.363 of 2004 passed by the learned District Munsif, Madurantakkam presented by the petitioner for registration and to direct the second respondent to register the same.
2. It is the contention of the learned counsel appearing for the petitioner that the exparte decree was originally obtained on 30.12.2004 in O.S.No.363 of 2004 and the same was sought to be set aside in I.A.No.405 of 2007 in O.S.No.363 of 2004 which was dismissed on 19.09.2007 against which C.M.A.No.3 of 2008 has been filed and the same was also 2/14 https://www.mhc.tn.gov.in/judis WP.No.23417 of 2013 dismissed on 17.09.2010. Thereafter, the petitioner presented the decree before the second respondent for registration. However, the second respondent returned the decree on the ground that the same has not been filed within 120 days and it has been presented for registration beyond the limitation period.
3. The learned counsel appearing for the petitioner would submit that as far as the decree is concerned, there is no limitation prescribed under Section 23 of the Registration Act to register a decree. This aspect has been upheld by the Division Bench of this Court in 2007 [2] TCJ 68 and following the same the Single Bench of this Court in W.P.Nos.8091, 8093 & 9446 of 2020 has directed the Registration Department to register the decree.
4. Whereas, the learned Special Government Pleader appearing for the respondents would submit that Section 23 of the Registration Act specifically provides time limit of four months for registration of a decree. Hence, sought for dismissal of this Writ Petition. 3/14 https://www.mhc.tn.gov.in/judis WP.No.23417 of 2013
5. In this regard it is relevant to note the judgment of the Division Bench of this Court, wherein the Division Bench of this Court taking note of various other judgments, in W.A.[MD] No.336 of 2019, in para 21 has held as follows :
“21. By applying the decision in the case of Padala Satyanarayana Murthy to the facts of the case, the only conclusion that could be arrived at is that a Court decree is not compulsorily registerable and that the option lies with the party.
In such circumstances, the law laid down by this Court clearly states that the limitation prescribed under the Act would not stand attracted.”
6. Considering the above judgment, the Single Bench of this Court in a batch of Writ Petitions in W.P.[MD] Nos.8091, 8093 & 9446 of 2020 has held as follows :
“17. It is clear from the above that the limitation prescribed under the Act will not stand attracted insofar as an order or decree passed by a competent court is concerned. This judgment has also been subsequently followed in the latest judgment by a 4/14 https://www.mhc.tn.gov.in/judis WP.No.23417 of 2013 Division Bench in W.A.(MD)No.902 of 2021, dated 26.04.2021. Therefore, this ratio has been consistently followed till date.
18.This court does not find any contradiction in the subsequent judgment rendered in W.A.(MD)No.336 of 2019 with the earlier view of the Hon'ble Division Bench in W.A.No.2395 of 2003.
19.It will be relevant to take note of the Judgment of the Division Bench of this Court and also the Judgment of the Andhra Pradesh High Court for the preposition that where a later Bench considers the decision of an earlier Bench and passes a judgment, the later decision will bind a single Judge.
a) In the case of P.Murugan Vs. Debts Recovery Appellate Tribunal reported in 2017 SCC online Madras 4187. The relevant portions are extracted hereunder.
“52.Yet another reason, as to why, we are not inclined to accept the contention of the learned counsel for the petitioner is that when there are two decisions, on the point of law, the judgment rendered at a later point of time, proximate and which has considered the decisions of the Hon'ble Apex Court, will prevail over the former. Reference can be made to few decisions, 5/14 https://www.mhc.tn.gov.in/judis WP.No.23417 of 2013
(i) In D.V. Lakshmana Rao v. State of Karnataka reported in 2001 (4) KAR.L.J. 185, the Karantaka High Court has held thus:
“It is now well-settled that if there are two conflicting judgments of the Supreme Court, of Benches with equal number of Judges, then the latter will prevail over the earlier. But where the earlier judgment is of a larger Bench and the latter judgment is of a smaller Bench, then the decision of the larger Bench will be binding. When there is divergence between decisions of two co-ordinate Benches of the Supreme Court, the latter decision should prevail. The exception arises where the first decision specifically considers a particular question and lays down the principles relating to the question and the subsequent decision, without noticing the earlier decision or the principles laid down therein, and without examining the question, renders an assumptive decision. In such a situation, the earlier decision which considered the question and lays down the principle will apply.”
(ii) A Full Bench of this Court in R. Rama Subbarayalu Reddiar v. Rengammal (AIR 1962 Madras 45) has examined the 6/14 https://www.mhc.tn.gov.in/judis WP.No.23417 of 2013 question with regard to High Court decisions. At Paragraph 4 of the judgment, this Court held that, “4. Before we deal with the question, involved in the appeal, it is necessary to examine the propriety of the procedure adopted by the learned District Judge, The normal rule as to the precedents is that Subordinate Courts are bound in the absence of any decision of the Supreme Court to follow the decision of the High Court to which they are subordinate. Where, however, there is a conflict between two decisions of the High Court, the rule to be adopted is as follows: where the conflict is between the judgment of a Single Judge and a Bench or between a Bench and a Larger Bench, the decision of the Bench or Larger Bench as the case may be, will have to be followed. But where the conflict is between two decisions both pronounced by a Bench consisting of the same number of Judges and the subordinate Court after a careful examination of the decision came to the conclusion that both of them directly apply to the case before it, it will then be at liberty to follow that decision which seems to it more correct, whether such decision be the later or the earlier one.” 7/14 https://www.mhc.tn.gov.in/judis WP.No.23417 of 2013
(iii) A Full Bench decision of Allahabad High Court in U.P. State Road Transport Corporation v. State Transport Appellate Tribunal, U.P., Lucknow (AIR 1977 Allahabad 1), held that, “12. It is noteworthy that the Supreme Court's decision in Mysore State Transport Corporation is later in time. Even if there is some conflict in the two Supreme Court decisions, we have to follow the law as declared in the later case of Mysore State Transport Corporation.” (iv) In Vasant Tatoba Hargude v. Dikkaya Muttaya Pujari (AIR 1980 Bom. 341), it is held that in case of conflict between earlier and later decisions of Supreme Court, each consisting of equal number of Judges, later decision prevails.
A Full Bench of Karnataka High Court (Five Judge Bench) in Govindanaik G. Kalaghatigi v. West Patent Press Company Limited (AIR 1980 Karnataka 92), at Paragraph 5, held that-
“If two decisions of the Supreme Court on a question of law can not be reconciled and one of them is by a Larger Bench while the other is by a Smaller Bench, it is earlier or later in point of time, should be followed by High Courts and other Courts. 8/14 https://www.mhc.tn.gov.in/judis WP.No.23417 of 2013 However, if both such Benches of the Supreme Court consist of equal number of Judges, the later of the two decisions should be followed by High Courts and other Court.”
b) In the case of B.Eswaraiah Vs. Labour Court I reported in 2014 SCC Online AP 386. The relevant portions are extracted hereunder.
“8. Having considered the matter with broader dimensions, we find that various High Courts have given different opinion on the question involved. Some hold that in case of conflict between two judgments on a point of law, later decision should be followed; while others say that the Court should follow the decision which is correct and accurate whether it is earlier or later. There are High Courts which hold that decision of earlier Bench is binding because of the theory of binding precedent and Article 141 of the Constitution of India. There are also decisions which hold that single Judge differing from another single Judge decision should refer the case to Larger Bench, otherwise he is bound by it. Decisions which are rendered without considering the decisions expressing contrary view have no value as a 9/14 https://www.mhc.tn.gov.in/judis WP.No.23417 of 2013 precedent. But in our considered opinion, the position may be stated thus with regard to the High Court, a single Bench is bound by the decision of another single Bench. In case, he does not agree with the view of the other single Bench, he should refer the matter to the Larger Bench. Similarly, Division Bench is bound by the judgment of earlier Division Bench. In case, it does not agree with the view of the earlier Division Bench, it should refer the matter to Larger Bench. In case of conflict between judgments of two Division Benches of equal strength, the decision of earlier Division Bench shall be followed except when it is explained by the latter Division Bench in which case the decision of latter Division Bench shall be binding. The decision of Larger Bench is binding on smaller Benches. In case of conflict between two decisions of the Apex Court, Benches comprising of equal number of Judges, decision of earlier Bench is binding unless explained by the latter Bench of equal strength, in which case the later decision is binding. Decision of a Larger Bench is binding on smaller Benches. Therefore, the decision of earlier Division Bench, unless distinguished by latter Division 10/14 https://www.mhc.tn.gov.in/judis WP.No.23417 of 2013 Bench, is binding on the High Courts and the Subordinate Courts. Similarly, in presence of Division Bench decisions and Larger Bench decisions, the decisions of Larger Bench are binding on the High Courts and the subordinate Courts. No decision of Apex Court has been brought to our notice which holds that in case of conflict between the two decisions by equal number of Judges, the later decision is binding in all circumstances, or the High Courts and subordinate Courts can follow any decision which is found correct and accurate to the case under consideration. High Courts and Subordinate Courts should lack competence to interpret decisions of Apex Court since that would not only defeat what is envisaged under Article 141 of the Constitution of India but also militate hierarchical supremacy of Courts. The common thread which runs through various decisions of Apex Court seems to be that great value has to be attached to precedent which has taken the shape of rule being followed by it for the purpose of consistency and exactness in decisions of Court, unless the Court can clearly distinguish the decision put up as a precedent or is per incuriam, having been rendered without 11/14 https://www.mhc.tn.gov.in/judis WP.No.23417 of 2013 noticing some earlier precedents with which the Court agrees. Full Bench decision in Balveer Singhs case (AIR 2001 Madh Pra
268) (supra) which holds that if there is conflict of views between the two co-equal Benches of the Apex Court, the High Court has to follow the judgment which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the Act, in our considered opinion, for reasons recorded in the preceding paragraph of this judgment, does not lay down the correct law as to application of precedent and is, therefore, over ruled on this point. (emphasis added) In my considered opinion, the position would be this: When the subsequent co-equal bench renders the judgment in ignorance of the earlier pronouncement of co-equal bench, the judgement of the previous bench will have binding effect. On the other hand, if the latter bench refers to the earlier one and distinguishes it, to that extent of distinction, the latter one binds. A learned Division Bench of this Court in S.K. Mahaboob Ali, Ex-CRPF Constable, Nandyal v. Director General of Police, Central Reserve Police Force, New Delhi, has held.” 12/14 https://www.mhc.tn.gov.in/judis WP.No.23417 of 2013
7. Since the matter has been extensively dealt by the Single Bench of this Court following decision of the Division Bench of this Court, the above dictum has to be followed.
8. Accordingly, this Writ Petition is allowed and the second respondent is directed to register the certified copy of the decree dated 30.12.2004 presented by the petitioner and the registration fee shall be levied only on the total value of the suit. It is also made clear that no stamp duty is leviable while registering any Order of decree. No costs.
09.09.2022 Index:Yes/No Web:Yes/No Speaking/Non Speaking vrc To,
1. The Inspector General of Registration, Santhome, Chennai.
2. The Sub Registrar, Madurantakkam Sub Registrar Office, Madurantakkam.
13/14 https://www.mhc.tn.gov.in/judis WP.No.23417 of 2013 N.SATHISH KUMAR, J.
vrc WP.No.23417 of 2013 09.09.2022 14/14 https://www.mhc.tn.gov.in/judis