Harry Griffin and Chamier, JJ.
1. This appeal arises out of a suit instituted by the plaintiff, Khadim Husain, to have a document alleged to have been executed by the defendants on the 2nd of June, 1909, registered. Musammat Mathuri is the wife of the defendant No.1. She was joined as a defendant on the allegation that a portion of the property conveyed by the sale deed had been acquired benami in her name. The plaintiff made two attempts to obtain attendance of the executants at the registration office. On each occasion service of the summons was not effected on the executants. By an order, dated the 12th of October, 1909, the Sub-Registrar refused to register the document for reasons set out at length in his order of that date. He stated that the plaintiff, Khadim Husain, had been unable to effect service of summons on the executants and that from the 17th of August, 1909, up to the date of the order, he had failed to take further steps. On the expiry of the four months from the date of the execution, the Sub-Registrar, under Rule 182 of the Registration Manual, submitted a report to the District Registrar, and in pursuance of the direction received from the Registrar on the 9th of October, 1909, he passed an order on the 12th of October, 1909, refusing to register the document. The plaintiff filed an appeal against this order within time to the District Registrar. That officer, by an order, dated the 25th of November, 1909, rejected the appeal. The suit out of which this appeal has arisen, was instituted on the 22nd of December, 1909. It was decreed ex parte against both the defendants on the 30th of June, 1910. On an application of the defendant No. 2, the ex parte decree against her was set aside, and the suit was retried so far as she was concerned. The result of the retrial of the suit was that it was dismissed as against defendant No. 2. The plaintiff comes in appeal against this order of dismissal. The lower court was of opinion that the suit was not maintainable. We find some difficulty in understanding the reasons given by the court below for holding that the suit was not maintainable. On behalf of the respondent it is contended that the order of the court below was right on two grounds; the first is that no suit lay under Section 77 of the Registration Act because the non-attendance of the executants at the office of the Sub-Registrar is equivalent to denial of execution, and therefore the plaintiff's remedy lay in an application under Section 73 of the Registration Act (XVI of 1908) and not in an appeal under Section 72. Various rulings were placed before us. They are all clearly distinguishable on the facts from the present case with one exception. In all these cases the summons was served on the executant, and the Sub-Registrar refused registration on the ground of denial of execution.
2. In Luckhi Narain Khettry v. Salcowrie Pyne (1888) I.L.R. 16 Calc. 189 which is the exception we have alluded to, the judgment of the High Court shows that the Registrar had, on the facts before him, assumed or found that the alleged execution had been denied by the executant of the document and he therefore refused to register it. In the present case it is quite clear from the order of the Sub-Registrar that the ground on which he refused registration was not denial of execution. The grounds were those set out in his order. It is next contended that the order of the District Registrar was not an order refusing registration. The order of the 9th October, 1909, is not before us. We gather it was merely a direction to the Sub-Registrar as to what he should do under the circumstances. It could not have been a refusal to register the document, because at that stage of the proceedings the document was not before the Registrar. In our opinion an appeal did lie against the order of the Sub-Registrar, dated the 12th of October, 1909, refusing to register the document. The order of the District Registrar, dated the 25th of November, 1909, was in effect a dismissal of the appeal. An appeal did lie to him and he refused to entertain it. The plaintiff is, therefore, entitled to come into the Civil Court under the provisions of Section 77 and claim to have his document registered. We allow the appeal of the plaintiff, set aside the order of dismissal and direct that the suit go back for retrial under Order XLI, Rule 23, of the Code of Civil Procedure. Costs of this appeal will be costs in the cause.