1. This appeal arises out of a suit under Section 77 of the Registration Act. Registration was in the first instance refused by the Sub Registrar under the following order: 'Eight months from the date of execution have passed. Although summons was issued against the executant to appear, she did not appear to admit execution. I refuse registration under Section 35 of Act III of 1877, paragraph 159 of the 'Registration Manual.'' The plaintiff (now appellant) who was the party interested in the deed in question, then presented a petition under Section 73 of the Registration Act to the District Registrar of Mozufferpore, praying that an order for the registration of the document might be made after taking of evidence. The Registrar made over this application to the Special Sub-Registrar for the necessary action and report. The Special Sub-Registrar passed the following order: 'This deed, dated the 24th November 1894, was presented by Mahomed Hossein, agent of Kudrathi Begum, before the Sub-Registrar of Mozufferpore on the 18th March 1895. The executant Najibunnessa did not appear either personally or by her authorized agent within eight months from the date of execution. The Sub-Registrar refused registration under paragraph 159 of the 'Registration Manual' on the 26th July 1895. The appeal does not lie under Section 73 of Act III of 1877. I reject the application accordingly.' It was in consequence of this order of the Special Sub-Registrar that the present suit was instituted under Section 77 of the Registration Act.
2. The learned Subordinate Judge has held that the suit does not lie. He takes the order to be equivalent to an order of the Registrar, which is apparently the correct view, looking to the provisions of Section 7 of the Registration Act, and the first of the rules made by the Inspector-General under the provisions of Section 69 of the Act. Under that rule the Sub-Registrar at the head-quarters of a district, whose office has been amalgamated with that of the Registrar, is authorised to act as the working deputy of the Registrar exercising, as a matter of routine, all the functions of a Registrar, except the powers of supervision, and control under Section 68, and that of hearing appeals from orders refusing to register under Section 72. He is authorised to deal with applications under Section 73 of the Act as a matter of course.
3. The ground on which the learned Subordinate Judge has held that no suit lies in this case is that registration had been refused on a ground other than the denial of execution, and therefore the proper remedy of the plaintiff was an appeal to the Registrar under Section 72 against the order of the Sub-Registrar refusing to admit the document to registration, and not an application under Section 73. He says: 'When plaintiff ought to have appealed to the Registrar under Section 72, but mistaking her remedy she made an application under Section 73, it is the same as if she did not at all go to the Registrar. It is thus abundantly clear that the plaintiff has not complied with the provisions of the Registration Act. She is therefore out of Court.'
4. The attention of the learned Subordinate Judge does not appear to have been directed to the case of Luckhi Narain Khettry v. Satcowrie Pyne (1888) I.L.R. 16 Cal. 189 and the case of Radhakissen Rowra Dakna v. Chconee Lall Dutt (1879) I.L.R. 5 Cal. 445 where it has been held that a wilful refusal or neglect to attend and admit execution is equivalent to a denial of execution within the meaning of the Registration Act; and that where such refusal or neglect occurs a suit will lie under Section 77 of the Act for the purpose of having the document registered. In paragraph 146 of the rules made by the Inspector-General, the latter case and another case, In re Abdul Aziz, (1887) I.L.R. 11 Bom., 691, are referred to as authority for that proposition, and it is stated that as soon as such refusal or neglect is proved before him, a registering officer may record his refusal to register the document under Section 35. It is remarked that an appeal, by which is apparently meant an application, will then lie to the Registrar under Section 73, who will make inquiry and pass orders under Sections 74 and 75 just as if execution had been specifically denied. We think that in accordance with the rulings to which we have referred and the practice of the Registration Department, the plaintiff did not mistake her remedy in applying in the present case to the Registrar under Section 73. The original order of refusal was on the face of it an order parsed under Section 35 of the Act, and it was passed in consequence of the neglect of the executant to attend and admit execution. Taking the order of the Special Sub-Registrar on the application under Section 73 as equivalent to an order of the Registrar, the case comes under clause (a) of Section 76 of the Act, (sic)and, therefore, the plaintiff had a right of suit under the provisions of Section 77.
The decree of the lower Court must be set aside, and the case remitted to Court for disposal on the merits.