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Kuyil Baby Ammal and Others Vs. Narayanan and Others - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 4639 of 2014 & M.P.No. 1 of 2014
Judge
AppellantKuyil Baby Ammal and Others
RespondentNarayanan and Others
Excerpt:
.....115 indian registration act validity of order the trial court dismissed application filed by petitioners on ground that as per section 17(2)(b) of the act, decree or order was compulsory and not necessary to register court held petitioners have right to make objection even at time of marking of said document and said objection can be considered by the court below only at final stage objection if any, made by petitioners for marking of document can be decided only at final stage and hence, he dismissed application order made in application is confirmed petition dismissed. (para 21) cases referred: air 2001 sc 1158, (bibin shantial panchal vs. state of gujarat and another) 2011(7) mlj 916 (manickam vs. chinnasamy and others) air 2003 sc 4548 (r.v.e venkatachala gounder v...........and it is totally abuse of process of law. after a period of more than one year from the date of marking of document ex.p.1, the present application has been taken up for rejection of ex.p.1 is not maintainable. 12. considering both sides arguments, the learned principal district munsif court, cuddalore, by an order dated 20.08.2014 dismissing the application filed by the petitioners in e.a.no.319 of 2014 on the ground that as per section 17(2)(b) of the indian registration act, a decree or order is compulsory and not necessary to register. since the ex.p.1 is only an assignment and hence, the said document was marked as ex.p.1. 13. the learned judge also states that at the time of marking the said ex.p.1 dated 01.06.2010, this petitioners, who are respondents in the abovesaid.....
Judgment:

(Prayer: Civil Revision Petition filed under Section 115 of the Civil Procedure Code, 1908, to aside the fair and decretal order in E.A.No.319 of 2014 in E.A.No.277 of 2010 in E.P. .... of 2010 in O.S.No.261 of 1991 dated 20.08.2014 on the file of the Principal District Munsif, Cuddalore.)

1. This Civil Revision Petition is filed against the order made in E.A.No.319 of 2014 in E.A.No.277 of 2010 in E.P. .... of 2010 in O.S.No.261 of 1991, on the file of the Principal District Munsif, Cuddalore, dated 20.08.2014.

2. The case of the petitioner is that the second petitioner, namely, Mr.Narayanan is the original decree holder in O.S.No.261 of 1991, dated 30.06.1993, on the file of the Additional District Munsif Court, Cuddalore. Originally, the suit in O.S.No.261 of 1991 was filed by the father of the second petitioner, namely, Pramasivam, against one Arumugam, S/o Manickam, Subramaniam, Ganesan, Ramalingam, Sons of Arumugam seeking the approval from the defendants and claiming the amount. The said suit was dismissed. Later on, an appeal in A.S.No.204 of 1993 was filed by the father of the second petitioner, namely, Mr.Paramasivam, before the I Additional Subordinate Court, Cuddalore and the same was decreed in favour of the said Paramasivam.

3. After the decree, the second petitioner has made over the decree passed in A.S.No.204 of 1993, in favour of this respondent, namely, Mathimugam. Thereafter, the respondent Mathimugam has filed E.P. ... of 2010 along with E.A.No.277 of 2010 before the Principal District Munsif, Cuddalore, against these petitioners to recognize him as an assignee of the decree for possession obtained by the first petitioner herein on the strength of alleged assignment stated to have been issued by the second petitioner herein on 01.06.2010 in favour of this respondent.

4. Though the said application was filed in E.A.No.277 of 2010 and summons were served on these petitioners, who are the respondents in the said E.A.No.277 of 2010 and they have engaged counsel, but they are not made any objection for allowing the

5. Considering the respondent' case, the learned Principal District Munsif, Cuddalore, allowed the said application on 27.06.2014. The respondent/assignee decree holder has purchased the above decree on 01.06.2010 and the said made over decree has been marked in the above E.A as Ex.P.1 and the same was accepted by the Execution Court.

6. The respondent/assignee decree holder was examined himself as P.W.1 and the said assignment dated 01.06.2010 was marked as Ex.P.1 in E.A.No.277 of 2010. Therefore, this petitioners were filed the present E.A.No.319 of 2014 with a prayer to reject the Ex.A.1, namely, the alleged assignment instrument dated 01.06.2010 on the ground that the said instrument is inadmissible and invalid in view of the legal embargo contemplated under Section 17 and 49 of the Registration Act 1908 and consequently praying to dismiss the E.A.No.277 of 2010.

7. The petitioner stated that as per Ex.P.1 marked in E.A.No. 227 of 2010, the alleged assignment recites states as follows:-

TAMIL Therefore, this petitioners filed the abovesaid application stating that the said so called Ex.P.1 operates to create and declare right, title and interest in the Decree mentioned property for a value of Rs.3,60,000/-. Hence, the alleged assignment must be compulsorily registered by virtue of Section 17 of Indian Registration Act. The petitioners also come forward by saying that the said Ex.P.1 is unregistered and unstamped. Hence, despite the legal embargo envisaged under Section 49 of the Act, the document was admitted in evidence and Exhibited as P.1

8. The petitioners also stated that though the question relating to stamp duty may not be raised after marking of the document, yet the question of want of registration of a document can be raised at any stage of the proceeding including at appellate stage or in revision, therefore, in view of Section 17 and 49 of the Registration Act, 19 and 49, Ex.P.1 is quite inadmissible and has no legal sanctity which cannot be looked into for any purpose at all and hence, he prayed the Execution Court to reject Ex.P.1 dated 01.06.2010.

9. The case of the respondent is that E.A.No.319 of 2014 filed by the petitioner is not at all maintainable and if at all the petitioners want to take any plea or making objection for the marking of Ex.P.1 dated 01.06.2010, they would have made their objection at the time of marking Ex.P.1 dated 01.06.2010.

10. The respondent also states that the impugned document, now stands promoted as Ex.P.1 in the presence of the other side and the said Ex.P.1 also stands subjected for examination by the other side and hence, at this juncture, the petition for rejection of Ex.P.1 as an inadmissible document is quite absurd and ridiculous, besides being illegal, unlawful, untenable and infantile.

11. The respondent also stated that in fact absolutely there is no ingredient whatsoever to invoke Order 13 Rule 3 of CPC at this stage is not maintainable. In support of his case, the respondent produced a Judgement reported in AIR 2001 SC 1158, (Bibin Shantial Panchal vs. State of Gujarat and another). In the above said Judgement it is held that the question of admissibility or inadmissibility of a document should be considered at the final disposal of the proceedings . Hence, the respondent prayed before the Executing Court that the petition itself is devoid of any merits and it is totally abuse of process of law. After a period of more than one year from the date of marking of document Ex.P.1, the present application has been taken up for rejection of Ex.P.1 is not maintainable.

12. Considering both sides arguments, the learned Principal District Munsif Court, Cuddalore, by an order dated 20.08.2014 dismissing the application filed by the petitioners in E.A.No.319 of 2014 on the ground that as per Section 17(2)(b) of the Indian Registration Act, a decree or order is compulsory and not necessary to register. Since the Ex.P.1 is only an assignment and hence, the said document was marked as Ex.P.1.

13. The learned Judge also states that at the time of marking the said Ex.P.1 dated 01.06.2010, this petitioners, who are respondents in the abovesaid E.A.No.227 of 2010 have not made any objection, but the present application was filed at this stage. The learned Judge also stated that the said document can be accepted by the Court could be decided only at the final stage of the case and hence, after marking the said document, this petitioners have no right to seek for rejection of Ex.P.1. 14.Heard Mr.N.Suresh, learned counsel for the petitioners as well as Mr.M.Rajasekar, learned counsel for the respondent.

15. Admittedly, a decree was passed by the Court below in favour of the second petitioner herein. As per Ex.P1 dated 01.06.2010, the said document was assigned in favour of this respondent/assignee/decree holder. When the respondent has filed an application in E.A.No227 of 2010, it is the bounden duty of this petitioners, if at all they want to make any objection for the marking of Ex.P.1 dated 01.06.2010, they would come forward to made their objection, but even their objection if any made by the petitioners, the Court can have marked the said document and that can be considered at the time of final disposal of the proceedings.

To support their case, the respondent produced a Judgment in AIR 2001 SC 1158 (cited supra) and 2011(7) MLJ 916 (Manickam vs. Chinnasamy and others).

16.The Hon'ble Apex Court in the above case reported in AIR 2001 SC 1158 (cited supra) held that practice to first decide, any objection raised to admissibility of evidence and then proceed further with trial Impedes steady and swift progress of trial Practice recasted courts should now make note of objection, mark objected document tentatively as exhibit and decide objection at final stage.

17. Considering the order of the Honourable Apex Court, this Court in the above Judgment reported in 2011(7) MLJ 916 (Manickam vs. Chinnasamy and others), held as follows:-

48. In fact, there is no illegality in regard to the procedure adopted by the trial Court in making Ex.B.14-Document. At best, marking of Ex.B.14- Document by the trial Court subject to objection is a curable one, as opined by this Court. Taking a plea as to the marking of a document based on its admissibility and relevancy when the main Suit is in part-heard stage will necessarily affect the steady progress of the trial. Such a course being adopted is neither a desirable or palatable or an appreciable on in as much as one has to give a quietus to the controversies/disputes of the main Suit in a comprehensive manner. Looking at from that point of view, this Court concludes that the present Civil Revision Petition fails.

18. This Court also very clearly held that in the abovesaid case before parting with the case, this Court observes that although Article 227 of the Constitution of India provides a supervisory jurisdiction over the Subordinate Courts, yet, the said power will have to be exercised by this Court sparingly exercising its judicial discretion and that too with great care and circumspection.

19. For support of his case, the petitioner produced a case passed by the Honourable Supreme Court reported in AIR 2003 SC 4548 (R.V.E Venkatachala Gounder v. A.V. and V.P Temple). In the abovesaid judgment, it is held that ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.

20. Apart from this, as per Section 17 (e) of the Registration Act, which reads as follows:-

17(e). Non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.

21. The case in hand is the document dated 01.06.2010, which is marked as Ex.P.1 is a document exhibited by the second petitioner by made over the decree in favour of this respondent/assignee, which was marked by the learned Judge as Ex.P.1. As per the above order by the Honourable Apex Court and this Court, these petitioners have right to make objection even at the time of marking of the said document and the said objection can be considered by the Court below only at the final stage. The Honourable Apex Court very clearly held in the above case reported in AIR 2001 SC 1158 (cited supra), court should now make note of objection, mark objected document tentatively as exhibit and decide objection at final stage. Noting the above Judgment and the Indian Registration Act, the learned Judge very clearly held that an objection if any, made by the petitioners for the marking of the Ex.P.1 dated 01.06.2010 can be decided only at the final stage and hence, he dismissed the application in E.A.No.319 of 2014 on 20.08.2014. Hence, the order of the learned Judge in E.A.No.319 of 2014 in E.A.No.277 of 2010 in E.P..... of 2010 in O.S.No.261 of 1991, dated 20.08.2014, there is no necessary for interference by this Court. Accordingly, I am passing the following orders:-

(a) This Civil Revision Petition is dismissed confirming the order made in E.A.No.319 of 2014 in E.A.No.277 of 2010 in E.P..... in O.S.No.261 of 1991 dated 20.08.2014.

(b) the learned Executing Court, namely, Principal District Munsif Court, Cuddalore is hereby directed to dispose of the unnumbered in E.P..... of 2010 in O.S.No.261 of 1991 filed by the respondent/assignee decree holder within a period of three months from the date of receipt of a copy of this order by giving opportunity to both parties and both parties are hereby directed to co-operate for early disposal of the E.A.No.277 of 2010.

No costs. Consequently, connected miscellaneous petitions are closed.


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