1. This is a suit brought under the provisions of Section 77 of the Registration Act.
2. The deed was executed on the 18th of September 1886. It was presented for registration on the 12th of January 1887 by the claimant, who applied for a summons against the executants. He was unable to serve the summons, and on the 30th of August 1887, the Registrar refused registration on the ground that more than eight months had elapsed.
3. The only question argued before me is whether the Registrar must not be taken to have refused registration at some period within the eight months, and whether this suit is not consequently barred by limitation. There is express authority in favour of the defendant's contention, and there is also, I think, express authority against it.
4. I was much pressed with Mr. Justice McPherson's decision, In the matter of Buttobehary Banerjee 11 B.L.R. 20, and there is no doubt that that case is undistinguishable from the present one.
5. I think, however, that the decision of the Privy Council in the case of Sah Makhun Lall Panday v. Sah Koondun Lall 15 B.L.R. 228 : 2 I.A. 210 : 24 W.R. 75 is a distinct authority for the contrary proposition. In the case Sir Barnes Peacock, referring to the Registration Act of 1866, says: 'Though the statute makes it imperative to present an instrument for registration within four months from the date of its execution, no time is fixed within which a deed presented and accepted for the registration must be registered, and indeed from the nature of the requirements of the Act the period within which the registration must be completed could not have been fixed.' Mr. Ghose, who appeared for the defendant, pointed out to me that there was a difference between the Act of 1866, with which the Privy Council were dealing, and the Act now in force, and that the Act which Mr. Justice McPherson considered in the case I have mentioned fixed, as in the Act of 1877, a limitation for the time within which executants can appear. I do not agree with Mr. Justice McPherson in considering that, from the fact that there is a limitation as to the time within which executants can appear, it follows that the refusal to register must be taken to have been made within the same period.
6. There being no express limitation I do not see why limitation by implication should be imported into the Act. As the Privy Council said, from the nature of the requirements of the Act, the period within which the registration must be completed could not have been fixed.
7. The Privy Council case is, I think, an express authority, and that this is so is clear from the case of Shama Charan Das v. Joyenoolah 11 C. 750 decided by a Division Bench of this Court.
8. I must order the defendant to register the document, and I direct that he pay the costs of this suit.
9. Mr. Sale then applied for a direction in the decree that the Registrar might register the deed in the event of the defendant not attending to do so.
10. The decree will be in the usual form; either it will contain a direction of the kind asked for, or in ease the defendant cannot be found, you will have liberty to apply.