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Arethia Sava Vishram Vs. Mah Hari Bhuva - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberA.F.A.D. No. 354 of 1960
Judge
Reported inAIR1967Guj222; (1966)GLR396
ActsRegistration Act, 1908 - Sections 23 and 32; Bombay Agricultural Debtors' Relief Act, 1947 - Sections 32 (5), 38 and 46G
AppellantArethia Sava Vishram
RespondentMah Hari Bhuva
Appellant Advocate D.U. Shah, Adv.
Respondent Advocate K.N. Mankad, Adv. for; M.C. Mankad, Adv.
Cases ReferredRodger v. Comptoir
Excerpt:
property - sections 23 and 32 of registration act, 1908 and sections 32 (5), 38 and 46g of bombay agricultural debtors' relief act, 1947 - appellant (creditor) obtained award in his favour against respondent (debtor) under act of 1947 - as per award possession of mortgaged property to be delivered to respondent on payment of amount - amount paid - applied to get possession of mortgaged property - two objections raised by appellant to application in execution - firstly award to be registered - secondly award contravened provisions contained in proviso to section 32 (20) (5) so court had no jurisdiction to pass award - section 38 and chapter ii-a applicable to award passed under act - duty of court to send award for registration - delay by court results in defeating rights of parties..........execution application filed by the respondent was not maintainable. the respondent then got the award registered and sought to prosecute his execution application. the appellant again raised objections which were rejected by the learned second additional sub-judge, rahpar by his order dated 20th february, 1958. civil appeal no. 51 of 1958 filed by the appellant in the court of the district judge against the order of the first court was dismissed by an order dated 16th june, 1958. it is against this order, of the learned district judge that the present appeal is preferred by the original creditor.(2) mr. d.u., shah, appearing on behalf of the appellant raised two points in support of his appeal.1. that as the award on which the execution application is brought was not registered within.....
Judgment:

(1) This is an appeal against the order of the learned District Judge dismissing the appeal of the appellant against the order of the Second Additional sub-Judge, Rahpar in Execution Application No. 41 of 1956 holding that the execution application filed by the respondent was maintainable and should proceed according to law. The appellant who was the creditor of the respondent -debtor obtained an award in his favour under the Bombay Agricultural Debtors Relief Act on 16th February 1955. The award provided that on payment of the amount awarded, the appellant should deliver possession of the mortgaged field to the respondent-debtor. The respondent paid the amount and demanded possession of the field and then applied in execution of the award to get possession of the mortgaged field. Thereupon the appellant raised various objections to the application in execution and the main ground of his objection was that the award which was sought to be executed was not registered and that therefore the execution application filed by the respondent was not tenable. The objection was upheld in appeal in which it was held that in absence of registration of the award, the execution application filed by the respondent was not maintainable. The respondent then got the award registered and sought to prosecute his execution application. The appellant again raised objections which were rejected by the learned Second Additional sub-Judge, Rahpar by his order dated 20th February, 1958. Civil Appeal No. 51 of 1958 filed by the Appellant in the Court of the District Judge against the order of the first Court was dismissed by an order dated 16th June, 1958. It is against this order, of the learned District Judge that the present appeal is preferred by the original creditor.

(2) Mr. D.U., shah, appearing on behalf of the Appellant raised two points in support of his appeal.

1. That as the award on which the execution application is brought was not registered within the time prescribed by Section 23 of the Indian Registration Act, the award was void and could not be executed.

2. That the award contravened the provisions contained in the proviso to sub-clause (5) of sub-section (2) of Section 32 of the Bombay Agricultural Debtors Relief Act and that therefore the Court passing the award had no jurisdiction to pass the award and that therefore such a void award could not be executed.

(3) The argument of Mr. Shah for the Appellant was that Section 38 of the Bombay Agricultural Debtors Relief Act provided that every award made under that Act shall be registered and that Section 46-G of that Act also provided that except as provided in the Act, the provisions of the Indian Registration Act, 1908 shall mutatis mutandis apply to the registration of awards and that therefore the combined effect of Sections 58 and 46G when read with Sections 23 of the Indian Registration Act, was that the award ought to have been registered within the time prescribed by Section 23 of the Indian Registration Act, i.e. within four months from the date of its execution. Section 38(1) of the Bombay Agricultural Debtors Relief Act, of 1947 before its amendment was as under:-

'Every award made under this Act, shall on payment of the court-fee payable under Section 44, be registered under the Indian Registration Act 1908 after the expiry of the period provided for an appeal, if an appeal is allowed but no appeal is filed and after the disposal of the appeal if an appeal is filed.: Thereafter Section 38(1) was substituted, in 1948 by Act. No. 70 of 1948 and now reads as under:- 'Every award made under this Act, if is in respect of debts charged on the properties of the debtor, shall on payment of the court fee payable under section 44, be registered in the manner provided in Chapter II-A.'

It would thus be noticeable that under the original section as it stood before 1948 awards under the Bombay Agricultural Debtors Relief Act had to be registered like other documents under the Indian Registration Act because under the old Section 38 there was a specific provision that such an award shall be registered under the Indian Registration Act 1908 and it was not clear from the wordings of the Section 38 as to whether the Court should sent it direct for registration or whether the parties had to get it registered. By virtue of the substitution of Section 38 and by the insertion of Chapter II-A in the Bombay Agricultural Debtors' Relief Act, a special procedure for registration was prescribed. Chapter II-A which was added in 1948 relates to registration of awards. Section 46A in that Chapter provides that in all registration offices a book called 'Register of Debt Adjustment Awards' and an Index relating thereto shall be kept and the book and index shall be kept in such form and shall contain such particulars as the State Government may prescribe. Under Section 38 as it originally stood, awards had to be registered like any other documents as laid down in the Indian Registration Act. But the present Section 46A provides that a special book called 'Register of Debt Adjustment Awards' has to be maintained in all registration offices. Section 46B as amended in 1950 provides that -

'Where an award is required to be registered under section 38, it shall be the duty of the Court making the award to send to the Sub Registrar of the sub district in which the property which is the subject matter of the award or any part of such property is situated, or if there is no Sub-Registrar for the area to the Registrar of the District in which the property or its part is situate a certified copy of the award after court-fee has been paid thereon in accordance with the provisions of section 44 together with a memorandum containing such particulars as the State Government may prescribe.'

It is thus clear that the Court making the award has to send a certified copy to be filed to every Registrar of the area where every debtor's property, affected by the award is situated. Section 46C provides that: -

'If a party files an appeal against an award under section 43 and if such award has been registered under section 38, it shall be the duty of the Court in which the appeal is filed to send to the Sub-Registrar or the Registrar to whom a certified copy of the award has been sent under Section 46B, a notice regarding the institution of the appeal.'

Section 46D provides that -

'After the expiry of the period provided for an appeal against an award if no appeal is filed, or if an appeal is filed after the disposal of the said appeal the Sub-Registrar or the Registrar, as the case may be, shall register the award, in the Register of Debt Adjustment Awards and shall also enter particulars in the Index kept under Section 46A.'

By virtue of Section 46B, all awards made under the repealed Act whether registered before the 27th day of May 1947 under the provisions of the said Act or not shall be registered under Chapter II-A. The last section which is 46G in the newly added Chapter II-A provides that

'Except as herein provided, the provisions of the Indian Registration Act, 1908, shall mutatis mutandis apply to the registration of awards and expressions used in this Chapter but not defined in this Act shall have the meanings assigned to them in the Registration Act, 1908.'

The aforesaid provisions sufficiently indicate that chapter II-A is a self-contained Chapter prescribing the procedure for registration of awards. The new Section 38 and the newly added Chapter II-A make it quite clear that it is the duty of the Court passing the award to send the award for registration, a provision which did not fine place in the Act before 1948. Section 23 of the Indian Registration Act provides that no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution. Section 23 thus refers to a document which has been presented for registration to the Registration Officer and Section 32 provides that every document to be registered under the Act shall be presented at the proper registration office by some person executing or claiming under the same and by such other persons mentioned in the section. Section 34 provides that no document shall be registered unless the person executing the document appears before the registering Officer within the time allowed for presentation under Sections 23 to 26. Section 38 of the Bombay Agricultural Debtors Relief Act however clearly provides that the document shall be registered in the manner provided in Chapter II-A and Section 46B makes it obligatory on the Court to send to the Sub Registrar of the District a certified copy of the award which shall be registered as provided in section 46D. The Bombay Agricultural Debtors Relief Act contains a special provision regarding the registration of an award and the time within which the Court making the award on whom the duty of sending awards for registration is cast, has to send it for registration is not fixed or specified in section 46B which corresponds to the provisions contained in Section 23 of the Indian Registration Act from applying to the awards under the Bombay Agricultural Debtors Relief Act. Section 46G itself says that except as provided in Chapter II-A, the provisions of the Indian Registration Act, shall mutatis mutandis apply to the restoration of awards. In dealing with the question as to who should present the award for registration and within what time, one must look primarily to Section 46G and not to section 23 or Section 32 of the Indian Registration Act. The Bombay Agricultural Debtors Relief Act thus becomes a statute on the same subject and introduces special conditions and procedure for registration of the awards and therefore the provisions contained in Section 38 and Chapter II-A would therefore be applicable to an award passed under the Bombay Agricultural Debtors Relief Act. Moreover, since the Bombay Agricultural Debtors Relief Act makes it a duty of the Court to send the award for registration, any delay on the part of the Court in sending the awards for registration would, if section 23 of the Indian Registration Act applied as was urged by Mr. Shah, result in defeating the rights of the parties without any default on their part and the parties would be visited with the consequences of delay which occurred not on their part but the on the part of the Court. The relevant observations of Cairns L.C. in Rodger v. Comptoir d' Escompte de Paris (1871) 3 PC 465 at p. 475, referred to in AIR 1961 SC 832 at p. 836 are:

'One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors'. For the reasons aforesaid, Section 23 and 32 of the Indian Registration Act would not be applicable to an award made under the Bombay Agricultural Debtors Relief Act and therefore there is no merit in the first contention of Mr. Shah.

(4) Mr. Shah's second contention was based on the amendment of the Bombay Agricultural Debtors Relief Act contained in the Government of India Notification dated 2nd June 1954 by which the Central Government amended the Bombay Agricultural Debtors Relief Act in its application to Kutch. A proviso has been added to sub-clause (5) of sub. Section (2) of Section 32 that -

'If any land is mortgaged by a landlord by way of unsufructuary mortgage to a tenant cultivating such land the Court shall not pass an order for the delivery of such land except with the consent of the tenant, who shall otherwise continue to hold the land under the terms and conditions on which he held the land before'.

Mr. Shah argued that in view of this proviso, the award which provided for the delivery of possession of the mortgaged land was illegal because it contravened the mandatory direction given in the proviso that the Court shall not pass n order for the delivery of such land as was referred to in the proviso except with the consent of the tenant who shall otherwise continue to hold the land under the terms and conditions on which he held the land before. Mr. Shah's contention was that the proviso on which he relied was en embargo on the powers of the Court while passing the decree and that it curtailed the powers of the Court which were vested in it under Section 32 of the Act and since the provision in the award for handing over possession of the mortgaged land contravened the proviso to sub-clause (5) of sub-section (2) of Section 32, the award passed by the Court was without jurisdiction and the decree on the award could not be executed as a decree of the Court. But while making this argument, Mr. Shah assumes that the proviso was applicable to the facts of the case which were before the Court at the time when the award was passed. Before deciding that the Court which passed the award should not have directed delivery of possession of the mortgaged land, it should be found as a matter of fact that the mortgagee was a tenant of the mortgagor prior to the creation of the mortgage. This is entirely a question of fact and this question was never raised before the Court which passed the award, nor before the executing Court in which execution was sought for the first time by the debtor or an award prior to the registration. There is nothing on the record to show that the creditor mortgagee was already a tenant of the debtor in respect of the mortgaged field before he became a mortgagee. This question therefore cannot be agitated in these execution proceedings. The second contention of Mr. Shah must therefore fail.

(5) Appeal dismissed.


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