1. This is a defendants' appeal arising out of a suit filed under Section 77 of the Indian Registration Act. The plaintiff's case was that defendants Nos. 1 and 2 with defendant No. 3 as surety had executed a mortgage in his favour and then by various devices, including a post-dated cherub which was later dishonored, prevented the plaintiff from presenting the mortgage for registration until the four months allowed by law had expired. It was therefore necessary to get the delay condoned by the Registrar under Section 25 of the Act, and an application was lodged with the Sub-Registrar as provided by Sub-section (2). The Registrar, however, refused to condone the delay and the Sub-Registrar made an order 'Registration refused'. Plaintiff then filed the present suit. The trial Judge decreed the suit.
2. On appeal by defendants Nos. 1 and 2 it is argued that no suit lay under Section 77 because no appeal was made to the Registrar against the order of the Sub-Registrar refusing registration. Section 77 begins as follows : ' Where the Registrar refuses to order the document to be registered, under Section 72 or Section 76, any person ' etc. Now Section 72 deals with the orders of a Registrar on appeal from a Sub-Registrar. That section is therefore not relevant. Section 76 lays down that a Registrar refusing (a) to register a document (subject to an exception not here material) ; (b) to direct registration of a document under Section 72 or Section 75, shall make an order of refusal, etc. As I have already pointed out Section 72 is not relevant in the present case and it is not contended that Section 75 has any relevancy. It therefore follows that unless there has been a refusal by the Registrar to register the mortgage within the meaning of Section 76(2)(a), the present suit will not lie.
3. Now the actual order refusing registration was made by the Sub-Registrar. But it is argued that as the Sub-Registrar has Under Section 25 no power to condone delay, and must refer the application to the Registrar, the Sub-Registrar's order refusing registration was really the order of the Registrar who refused to condone delay and not of the Sub-Registrar, who for purposes of this section functions merely in a ministerial capacity. If, however, one compares the wording of Section 25 with the wording of Section 76, I think this argument fails. Section 76 makes a clear distinction between (a) refusing to register a document and (b) refusing to direct registration of a document. Clause (a) would thus apply when a document is presented directly to a Registrar for registration as may be done under Section 30 or Section 40 of the Act. But if the Registrar condones delay then in the words of Section 25 'he may direct that such document be accepted for registration'. It follows that a Registrar who refuses to condone delay is refusing to direct registration of a document and that his action cannot be brought under Clause (a). It! may not seem very reasonable that a party should be forced to appeal to the Registrar against an order which is passed under his direction before he can file a suit, but the wording of the Act shuts out any other construction. Possibly the legislature thought that the Registrar should be given an opportunity to reconsider a refusal made without hearing the party and before the matter was brought into a civil Court
4. Further this view is in accordance with authority. In Gangava v. Sayava I.L.R. (1896) 21 Bom. 699 the facts were exactly similar and it was held that no suit lay. The learned Judges there drew a distinction between refusing to register and refusing to accept for registration. That distinction has not been approved in certain subsequent Bombay rulings and we do not rely upon it. Nonetheless the case is an authority for what it decides and it has never been overruled.
5. Fattechand Anandram v. Umaji I.L.R. (1922) 47 Bom. 290 : 25 Bom. 290 :25 Bom. L.R. 45 was a case under Section 34 of the Indian Registration Act. But that section is so near in terms to Section 25 that the decision is relevant. Thereafter the Registrar had refused to condone delay and the Sub-Registrar had in consequence refused to register, an application was made to the Registrar to alter his decision. The learned Judges treated this as an appeal to the Registrar and held that a suit to compel registration lay. Clearly unless they had accepted the correctness of the decision in Gangava v. Sayava it would have been unnecessary to consider whether the application to the Registrar did in fact amount to an appeal.
6. In Maneklal v. Kasturbhai Mmibhai I.L.R. (1929) 53 Bom. 644 : 31 Bom. L.R. 676 there was a regular appeal to the Registrar, and though with all due respect I find some parts of this judgment difficult to follow, I think it is clear that the fact that an appeal was preferred was a fact relevant to the decision.
7. In Gmgadam v. Sambasiva I.L.R. (1916) Mod.759 there was also an appeal to the Registrar.
8. In Mmikka Mudalicn v. Md. Ziavuddin Saheb (1924) 48 M.L.J. 221, relied on by Mr. Dalvi for the respondents, the facts were peculiar. That was also a case under Section 34, but the Registrar who refused to condone the delay himself passed an order ' Registration refused ', instead of merely informing the Sub-Registrar that the delay could not be excused and leaving him to pass the actual order refusing registration. In the course of the judgment the learned Judges cited Fattechand Anmdram v. Umaji with approval.
9. For these reasons we think that the present suit does not fall within the compass of Section 77. The appeal must be allowed and the plaintiff's suit dismissed. Looking, however, to the conduct of the defendants we direct that all parties bear their own costs both in this Court and in the trial Court.
10. As the appeal succeeds it is unnecessary to make any orders on the cross-objections which dealt with a point of costs only.