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Narayana Venkatachalamiah Vs. Putika Venkatiah and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1942Mad24; (1941)2MLJ588
AppellantNarayana Venkatachalamiah
RespondentPutika Venkatiah and ors.
Cases ReferredVelayuda Mudali v. Cooperative Rural Credit Society
Excerpt:
- - but for section 51 of the act (vi of 1932) a suit would have been filed in the civil courts and clearly the doctrine of lis pendens would have applied......(1) (b) of madras act vi of 1932 and the proceedings taken thereafter are all substitutes for a suit in a civil court. a more speedy and effective remedy is given by section 51, clause (1) and the sections following. but for section 51 of the act (vi of 1932) a suit would have been filed in the civil courts and clearly the doctrine of lis pendens would have applied. any person who takes a mortgage or other alienation subsequent to the institution of a suit or other proceeding cannot say that he is not bound by the decree or order passed in it. in this case, the proceedings under section 51 of madras act vi of 1932 being a substitute for a suit in the civil court, it is obvious that reason requires that the same result would follow. otherwise there will be no finality to a decision of.....
Judgment:

Somayya, J.

1. The plaintiff who is the appellant in this second appeal brought a suit for recovery of a sum of money due on a mortgage deed executed by Venkatayya the first defendant, in his favour on 14th November, 1932. The first defendant had executed a mortgage of the items covered by the plaintiff's mortgage and of some other items in favour of the second defendant the Co-operative society on 7th September, 1927. There being some amount due on the mortgage in favour of the second defendant, proceedings were taken under the Madras Co-operative Societies Act of 1932. In terms of Section 51, Clause (1) (b) there being a dispute between the society and a member, the dispute was referred to the Registrar for decision. The Registrar referred the dispute for disposal to an arbitrator under Section 51, Clause (2) (c). The arbitrator gave his decision, which under Section 51, Clause (6) (&) is final and is not liable to be called in question in any Civil or Revenue Court. Thereafter the society itself purchased the property in execution and subsequently transferred it to the third defendant. The plaintiff's mortgage was executed after the dispute between the first and second defendants was referred to the Registrar under Section 51, Clause (1) (b).

2. The mortgage in favour of the plaintiff being subsequent to the reference to the Registrar under Section 51 (1) (b), the question is whether such a transfer is affected by the doctrine of Its pendens. Section 52 of the Transfer of Property Act provides that:

During the pendency in any Court having authority in British India, or established beyond the limits of British India by the Governor-General in Council, of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court, and on such terms as it may impose.

3. It has been held in a number of decisions of this Court that the Registrar is a Court. This position is not seriously challenged. In Thadi Subbi Reddi v. Emperor : (1930)59MLJ229 it was held that the Registrar was a Court for the purposes of Section 195 of the Criminal Procedure Code. In Velayuda Mudali v. Co-operative Rural Credit Society (1933) 66 M.L.J. 90 it was held that for the purpose of Section 52 of the Transfer of Property Act, he is a Court. So likewise in Govada Balabharathi Co-operative Credit Society v. Fenkatakrishnayya : AIR1940Mad932 . It is argued by Mr. Sampath Aiyangar, learned Advocate for the appellant, that the word 'Court' in Section 52 of the Transfer of Property Act does not include a Registrar or an arbitrator appointed by the Registrar under the provisions of the Madras Co-operative Societies Act, 1932. The word 'Court' as mentioned in Section 52 appears to me to be comprehensive enough to include the Registrar or the arbitrator appointed by him under the Act. Reference was made to Section 57-B of the Act (VI of 1932), but that section has no application because it enacts that for certain purposes the Registrar or any person empowered by him in that behalf shall be a Civil Court for the purpose of Article 182 of the First Schedule to the Limitation Act, 1908, which provides for execution of decrees of Civil Courts. The amendment itself was rendered necessary by a decision of Cornish, J., in Abdul Razack Sahib v. Kilpatti Co-operative Society (1935) 70 M.L.J. 31 which held that the Registrar was not a Civil Court for the purposes of Article 182 of the Limitation Act. We are not now concerned with the question whether the Registrar is a Civil Court, but whether he is a Court under Section 52 of the Transfer of Property Act. The decision of Walsh, J., in Velayuda Mudali v. Cooperative Rural Credit Society (1933) 66 M.L.J. 90 is a decision directly in point. That was a decision that the Registrar or the authority appointed by him was a Court for the purpose of Section 52 of the Transfer of Property Act. I entirely agree with that decision.

4. Then it is said that Section 52 refers to a decree or order and that the decision of the Registrar or the arbitrator is not a decree or order. Here the word 'order' is used in general terms. In this case we have an order passed in a proceeding in a Court and therefore this argument has no force. A reference to the Registrar under Section 51, Clause (1) (b) of Madras Act VI of 1932 and the proceedings taken thereafter are all substitutes for a suit in a Civil Court. A more speedy and effective remedy is given by Section 51, Clause (1) and the sections following. But for Section 51 of the Act (VI of 1932) a suit would have been filed in the Civil Courts and clearly the doctrine of lis pendens would have applied. Any person who takes a mortgage or other alienation subsequent to the institution of a suit or other proceeding cannot say that he is not bound by the decree or order passed in it. In this case, the proceedings under Section 51 of Madras Act VI of 1932 being a substitute for a suit in the Civil Court, it is obvious that reason requires that the same result would follow. Otherwise there will be no finality to a decision of the arbitrator or the Registrar even though such decision was in a proceeding in which a right to immovable property was specifically raised and decided. A right to immovable property being directly in question, the alienation made in favour of the plaintiff cannot prevail over the rights obtained under the decision of the Registrar. The property was subsequently sold as the plaintiff did not care to redeem or to pay up the amount adjudged by the Registrar or by the arbitrator appointed by him and the same was purchased by the second defendant and sold later on to the third defendant. These proceedings 'are binding on the plaintiff and his suit Was therefore rightly dismissed.

5. The second appeal is dismissed with costs.

6. Leave to appeal is refused.


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