Madras High Court
Mohammed Nasaar Basha vs The Sub-Registrar on 17 June, 2022
W.P.No.15090 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.06.2022
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.No.15090 of 2022
Mohammed Nasaar Basha ... Petitioner
Vs
The Sub-Registrar,
Uthangarai, Krishnagiri District. ... Respondent
Prayer: Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorarified Mandamus, calling for the records relating to
the impugned order of the respondent in Refusal
No.RFL/Uthangarai/50/2022 dated 26.04.2022 and quash the same as the
same is arbitrary, illegal and non-est in the eyes of law and consequently
direct the respondent to register the court decree dated 27.04.2019 made in
I.A.No.103 of 2015 in O.S.No.39 of 2005 on the file of the III Addl. District
Judge at Tirupathur.
For Petitioner : Mr.T.Arockia Dass
For Respondent : Mr.Yogesh Kannadasan
Special Government Pleader
1/12
https://www.mhc.tn.gov.in/judis
W.P.No.15090 of 2022
ORDER
The petitioner has filed this writ petition seeking issuance of Writ of
Certiorarified Mandamus calling for the records relating to the impugned
order of the respondent in Refusal No.RFL/Uthangarai/50/2022 dated
26.04.2022 and quash the same as the same is arbitrary, illegal and non-est
in the eyes of law and consequently direct the respondent to register the
court decree dated 27.04.2019 made in I.A.No.103 of 2015 in O.S.No.39 of
2005 on the file of the III Additional District Judge at Tirupathur.
2.The case of the petitioner is that the petitioner has filed a suit for
partition in O.S.No.39 of 2005 on the file of the III Additional District and
Sessions Judge, Thirupathur wherein preliminary decree was passed on
30.01.2015 and the same has attained finality. Thereafter, I.A.No.103 of
2015 was filed to pass a final decree for appointment of Advocate
Commissioner to measure the metes and bounds of the suit property and
allot a share to the shareholder. The said I.A. was also allowed on
27.04.2019.
3. Subsequent to that, on the strength of the decree having been
attained finality, the petitioner has approached the respondent for
https://www.mhc.tn.gov.in/judis
W.P.No.15090 of 2022
registration of the decree on 26.04.2022, which the respondent refused to
register on the ground that the same is presented after 8 months. Hence, the
present Writ Petition.
4.The learned counsel appearing for the petitioner submitted that there
is no period of limitation for registering the decree obtained in an appeal and
further submitted that the issue arises in the present case has already been
settled by this Court. In support of his contentions, the learned counsel
relied upon the judgment of the Hon'ble Division Bench of this Court made
in W.A.No.336 of 2019 dated 07.02.2019.
5.The learned Special Government Pleader appearing for the
respondent did not dispute the facts submitted by the learned counsel for the
petitioner.
6.Heard the counsel appearing for the petitioner and the learned
Special Government Pleader appearing for the respondent and perused the
materials placed on record.
7.The issue involved in the present writ petition is covered by the
earlier judgment passed by the Hon'ble Division Bench of this Court in
W.A.No.336 of 2019, dated 07.02.2019, the relevant portion of which reads
as follows:
https://www.mhc.tn.gov.in/judis
W.P.No.15090 of 2022
''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
https://www.mhc.tn.gov.in/judis
W.P.No.15090 of 2022
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 [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
https://www.mhc.tn.gov.in/judis
W.P.No.15090 of 2022
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
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
https://www.mhc.tn.gov.in/judis
W.P.No.15090 of 2022
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 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
https://www.mhc.tn.gov.in/judis
W.P.No.15090 of 2022
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
Registration Act, that the necessity for
registration arises only in regard to document
https://www.mhc.tn.gov.in/judis
W.P.No.15090 of 2022
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
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.
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
https://www.mhc.tn.gov.in/judis
W.P.No.15090 of 2022
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 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.''
[emphasis supplied]
https://www.mhc.tn.gov.in/judis
W.P.No.15090 of 2022
8.The above judgment will squarely apply to the facts of the present
case. The impugned refusal No.RFL/Uthangarai/50/2022 passed by the
respondent dated 26.04.2022 is hereby set aside. The respondent is directed
to register the decree dated 27.04.2019 made in I.A.No.103 of 2015 in
O.S.No.39 of 2005 on the file of the III Additional District Judge,
Tirupathur, if it is otherwise in order and subject to payment of necessary
stamp duty and registration fees.
9.This writ petition is accordingly allowed. No costs.
17.06.2022
kbs
Speaking Order/ Non Speaking Order
Index: Yes/ No
Internet: Yes/ No
To
The Sub-Registrar,
Uthangarai, Krishnagiri District.
https://www.mhc.tn.gov.in/judis
W.P.No.15090 of 2022
M.DHANDAPANI, J.
kbs
W.P.No.15090 of 2022
17.06.2022
https://www.mhc.tn.gov.in/judis
