Madras High Court
K.Elangovan vs The Sub-Registrar on 24 June, 2022
W.P.No.15741 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.06.2022
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.No.15741 of 2022
K.Elangovan ... Petitioner
Vs.
The Sub-Registrar,
Avalpoondurai Sub-Registrar Office,
Erode District. ... Respondent
PRAYER: The Writ Petition filed under Section 226 of the Constitution of
India, pleased to issue a Writ or direction or order more particularly in the
nature of Writ of Certiorarified Mandamus calling for records pertaining to the
Refusal Check Slip in refusal number RFL/Avalpoondurai/40/2022 dated
13.04.2022 and to quash the same as illegal and incompetent and consequently
direct the respondent to register the decree dated 26.08.2016 passed in
A.S.No.1 of 2007 on the file of the II Additional District Judge, Erode by
confirming the Judgment and decree dated in 11.11.2003 in O.S.No.629 of
2021.
For Petitioner : Mr.M.Guruprasad
For Respondent : Mr.Yogesh Kannadasan
Special Government Pleader
1/10
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W.P.No.15741 of 2022
ORDER
Writ Petition has been filed seeking for issuance of a Writ of
Certiorarified Mandamus to call for records pertaining to the Refusal Check
Slip in refusal number RFL/Avalpoondurai/40/2022 dated 13.04.2022 and to
quash the same as illegal and incompetent and consequently direct the
respondent to register the decree dated 26.08.2016 passed in A.S.No.1 of 2007
on the file of learned II Additional District Judge, Erode by confirming the
Judgment and decree dated 11.11.2003 in O.S.No.629 of 2021.
2. The case of the petitioner is that he filed a Suit in O.S.No.629 of
2001 on the file of Principal District Court, Erode dated 11.11.2003 for
injuction and other reliefs and the same was decreed in favour of the petitioner.
Thereafter, the defendents in the said suit filed an appeal in A.S.No.1 of 2007
on the file of learned II Additional District Judge, Erode and the said appeal
was dismissed on 26.08.2016, by confirming the Judgement and decree dated
11.11.2003. Whileso, the petitioner presented the certified copy of the same
before the respondent on 13.04.2022 and the same was refused on the ground of
delay in presenting the same. While so, the petitioner has come up with the
present Writ Petition seeking the aforesaid relief.
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W.P.No.15741 of 2022
3. The 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. The 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 appearing for the Petitioner and the
learned Special Government Pleader for the Respondents 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.15741 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.
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W.P.No.15741 of 2022
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 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
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W.P.No.15741 of 2022
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 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
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W.P.No.15741 of 2022
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
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
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W.P.No.15741 of 2022
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 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
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W.P.No.15741 of 2022
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
passed by the respondent dated 13.04.2022 is set aside and the respondent is
directed to register the decree in A.S.No.1 of 2007 dated 26.08.2016 passed by
the learned II Additional District Judge, Erode, if otherwise in order and after
receipt of necessary Stamp duty, registration charges. No costs.
24.06.2022
RAP
Speaking Order : Yes/No
Index : Yes/No
To
The Sub-Registrar,
Avalpoondurai Sub-Registrar Office,
Erode District.
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W.P.No.15741 of 2022
M.DHANDAPANI,J
RAP
W.P.No.15741 of 2022
24.06.2022
https://www.mhc.tn.gov.in/judis
