Madras High Court
Krishnan vs The Sub-Registrar on 16 June, 2022
W.P.No.14898 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.06.2022
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.No.14898 of 2022 and
W.M.P.No.14105 of 2022
Krishnan ... Petitioner
Vs.
The Sub-Registrar,
Mecheri Sub Registrar Office,
Salem District. ... Respondent
PRAYER: The Writ Petition filed under Section 226 of Constitution of India,
pleased to issue a Writ or direction or order more particularly in the nature of
Writ of Certiorarified Mandamus to call for records relating to the impugned
refusal Check Slip dated 07.04.2022 in RFL/Mecheri/10/2022 by the
respondent quash the same and consequently direct the respondent to register
the judgment and decree dated 27.09.2013 made in A.S.No.34 of 2011-II
Additional District Judge, Salem confirmed in Judgment and decree in
S.A.No.355 of 2015 dated 17.02.2022.
For Petitioner : Mr.R.Prabakar
For Respondent : Mr.Yogesh Kannadasan
Special Government Pleader
ORDER
Writ Petition has been filed seeking for issuance of a Writ of
Certiorarified Mandamus calling for records relating to the impugned refusal
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W.P.No.14898 of 2022
Check Slip dated 07.04.2022 in RFL/Mecheri/10/2022 by the respondent,
quash the same and consequently direct the respondent to register the judgment
and decree dated 27.09.2013 made in A.S.No.34 of 2011-II Additional District
Judge, Salem confirmed in Judgment and decree in S.A.No.355 of 2015 dated
17.02.2022.
2. The case of the petitioner is that the petitioner's father is owner of
the properties in R.S.Nos.150/5, 150/6 corresponding to subdivided
S.Nos.150/5B and 150/6B sitauted in Amani M.Kalipatti Village, Mettur Taluk.
After his demise his legal heirs were in possession and enjoyment of the said
property and they filed a Suit in O.S.No.89 of 2007 on the file of Subordinate
Court, Mettur seeking for declaration and other reliefs and the same was
dismissed on 29.03.2010. Against which, they filed the first Appeal in
A.S.No.34 of 2011 on the file of II Additional District Judge, Salem. On
27.09.2013, the first appellate Court, allowed the appeal by setting aside the
judgment and decree dated 29.03.2010 in favour of the petitioner. Whileso, the
petitioner presented the certified copy of the judgment and decree in A.S.No.34
of 2011 before the respondent on 07.04.2022, for registration and the same was
refused on the ground of delay in presenting the same by way of an impugned
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W.P.No.14898 of 2022
order dated 07.04.2022. Challenging the same, the petitioner has come up with
the present Writ Petition seeking the aforesaid relief.
3. Learned counsel for the petitioner submitted that the issue arises in
the present case has already been settled by this Court on several orders that
mere delay will not deny the right of the register to renew the encumbrance of
the property. In support of his contention, the learned counsel relied upon the
judgment of the Hon'ble Division Bench of this Court in W.A.No.336 of 2019
dated 07.02.2019. Accordingly, he prays to allow the writ petition.
4. Learned Special Government Pleader appearing for the respondent
did not dispute the facts submitted by the learned counsel for the petitioner.
5. Heard the learned counsel for the petitioner and learned Special
Government Pleader appearing for the respondent and perused the materials
placed on record.
6. The issue involved in the present writ petition is covered by the
earlier Order passed by the Hon'ble Division Bench of this Court in
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W.P.No.14898 of 2022
W.A.No.336 of 2019, dated 07.02.2019. The relevant portions of the order are
extracted here under:
''6. The legal question involved in the instant case is
as to whether the respondent could have refused registration
of the said decree passed in O.S. No.6 of 1968 dated
29.4.1970 on the ground that it was presented beyond the time
limit prescribed under Section 23 of the Act. Since the legal
question is no longer res integra and the respondent having
not taken note of the legal issue, this Court is of the view that
said the writ petition is maintainable and the appellant need
not be driven to avail the alternate remedy available under
the Act. Accordingly, the preliminary objection raised by the
learned Additional Government Pleader stands rejected.
.........................
13. As pointed out by us earlier, we need to first
address the legal issue, which arises for consideration as to
whether at all the law of limitation as prescribed under
Section 23 of the Act would apply to a court decree.
14. This question is no longer res integra and this
Court has consistently held that the law of limitation will not
apply when a court decree is presented for registration.
Earliest of the decisions, which has been followed consistently
by a Division Bench of this Court is in the case of A.K.
Gnanasankar Vs Joint-II Sub-Registrar, Cuddalore-2
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W.P.No.14898 of 2022
[reported in 2007 (2) TCJ 68]. In the said decision, this Court
held that the limitation prescribed for presenting a document
does not apply to a decree, as it is a permanent record of the
court and to register the same, no limitation is prescribed.
15. This decision was followed by one of us (TSSJ) in
W.P.No.9352 of 2015 dated 31.3.2015 [B.Vijayan Vs. District
Registrar & another]. Subsequently, a similar view had been
taken by this Court in W.P.No.8247 of 2016 dated 07.3.2016
[G.Mudiyarasan & another Vs. Inspector General of
Registration], which once again relied upon the decision in
the case of A.K.Gnanasankar. Further, in the case of Arun
Kumar Vs. Inspector General of Registration [W.P.No.16569
of 2016 dated 06.6.2016], this Court directed registration of a
judgment and decree passed by the Principal District Munsif
Court, Salem by condoning the delay on an application filed
by the person presenting the document and in that decision,
this Court referred to the decision in the case of Rasammal Vs.
Pauline Edwin & others [reported in 2011 (2) MLJ 57]
wherein the Court considered the scope of Section 25 of the
Act.
16. Again, in the case of P.A.Duraisamy Vs.
Registrar, Registration Department, Coimbatore & another
[W.P.No.2824 of 2013 dated 26.10.2016], an identical view
had been taken following the decision in the case of
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W.P.No.14898 of 2022
A.K.Gnanasankar. A similar view was taken in the case of
Lakshmi Vs. Sub-Registrar, Valapady, Salem District
[reported in 2017 (1) LW 721] wherein it was pointed out that
the Proviso to Section 23 of the Act states that a copy of the
decree may be presented within four months from the date, on
which, the decree or order was made or where it is
appealable, within four months from the day, on which, it
becomes final, that the limitation prescribed under Section 23
of the Act should be read with in consonance with Section 25
of the Act and that since they were only directory in nature,
the check slip issued by the respondent therein was held to be
bad in law.
17. In the case of A1362 Meenakshi Cooperative
Building Society Ltd. Vs. District Registrar & Others [WP
(MD) No.5108 of 2018 dated 12.4.2018], this Court followed
the decision in the case of A.K. Gnanasankar and directed
registration of the court decree. In yet another decision in the
case of Dr.Sulochana Vs. Inspector General of Registration
[reported in 2017 (2) CWC 489], this Court held that
registration is only a part of procedural law and that though
the Statute is fiscal, the doctrine of purposive and reasonable
interpretation has application. This Court took note of the
decision of the Karnataka High Court in the case of
Anjinamma Vs. Puttahariyappa [reported in AIR 2003
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W.P.No.14898 of 2022
Karnataka 24].
18. The Hon'ble Supreme Court in the case of
Shreenath Vs. Rajesh [reported in 1998 (4) SCC 543], held
that in interpreting any procedural law, when more than one
interpretation is possible, the one, which curtails the
procedure without eluding justice, is to be adopted, that the
procedural law is always subservient to and is in aid of justice
and that any interpretation, which eludes or frustrates the
recipient of justice, is not to be followed.
19. A Full Bench of the Andhra Pradesh High Court
in the case of Padala Satyanarayana Murthy Vs. Padala
Gangamma [reported in AIR 1959 AP 626] answered a
reference as to whether Section 77 of the Indian Registration
Act bars a suit on the basis of an unregistered Will, when the
Sub-Registrar refused to admit it for registration. It was held
that Section 17 of the Act enumerates the documents, which
require registration and the effect of failure to observe it is
stated in Section 47 and that under Section 18(c) of the Act,
the registration of a Will is purely optional and that being so,
the Full Bench expressed that they did not think that the
consequences contemplated by Section 49 would flow from not
having recourse to Section 77 of the Act. It was further held
that a party cannot be compelled to get document registered if
such an obligation is not cast by the provisions of the
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W.P.No.14898 of 2022
Registration Act, that the necessity for registration arises only
in regard to document set out in Section 17, that no penalty
can attach to the omission to get a document registered when
it is excepted by Section 17 and that therefore, the Full Bench
felt that Section 77 can have relation only to instrument falling
within the ambit of Section 17.
20. The decision in the case of Padala
Satyanarayana Murthy was followed by the Allahabad High
Court in the decision in the case of Rama Pati Tiwari Vs.
District Registrar, Allahabad [reported in AIR 2009
Allahabad 102].
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 registrable 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.
22. Having set out the legal position in the above
terms in favour of the appellant, now we proceed to examine
as to whether there was any delay in presentation of the
decree and in other words, whether the court decree was
presented beyond the period of four months.
23. The decree in O.S.No.6 of 1968 was passed on
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W.P.No.14898 of 2022
29.4.1970. This decree was the subject matter of challenge in
C.S.No.149 of 1980, in which, the judgment was delivered on
28.10.1995. Challenging the said decree dated 28.10.1995, an
appeal was filed before a Division Bench of this Court in
O.S.A.No.299 of 1996, in which, the appellant herein was the
first respondent. One of the issues, which was framed for
consideration by the Division Bench, was as to whether the
compromise decree dated 29.4.1970 passed in O.S.No.6 of
1968 on the file of the Principal District Court, Puducherry, is
not binding on the plaintiff’s share. The Division Bench
dismissed the appeal by judgment and decree dated
20.3.2002. Challenging the said judgment and decree dated
20.3.2002, a special leave petition in SLP.(C).No.8268 of 2002
was filed and it was dismissed vide order dated 01.11.2002.''
7. Accordingly, this Writ Petition is allowed and the impugned order
dated 07.04.2022 passed by the respondent is set aside and the respondent is
directed to register the judgment and decree in A.S.No.34 of 2011 dated
27.09.2013 passed by the II Additional District, Judge, Salem, if otherwise in
order and after receipt of necessary Stamp duty, registration charges. No costs.
Consequently connected miscellaneous petition is closed.
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W.P.No.14898 of 2022
16.06.2022
RAP
Speaking Order : Yes/No
Index: Yes/No
M.DHANDAPANI,J
RAP
To
The Sub-Registrar,
Mecheri Sub Registrar Office,
Salem District.
W.P.No.14898 of 2022
https://www.mhc.tn.gov.in/judis
W.P.No.14898 of 2022
16.06.2022
https://www.mhc.tn.gov.in/judis
