Asanisa Rowther and Another vs Raman Pillai

Raghavan, J.—The plaintiff - original decree-bolder - and the assignee-decree-holder in O.S. No. 134 of 1112 on the file of the court of the Munsiff, Changancherry are the appellants in the second appeal and the defendant-judgment-debtor the respondent. The appellants filed E. P. No. 625 of 1955 for recognition of the assignment of the decree by the 1st appellant in favor of the 2nd appellant and for executing the same. Objections were raised by the respondent-judgment-debtor, the main objections being (1) that since the assignment of the decree was not registered under the provisions of Section 17(1)(e) of the Indian Registration Act, the decree could not be executed by the assignee; (2) that the decree was satisfied by payment to the original decree-holder and therefore, nothing remained for payment; (3) that the decree was barred by limitation and (4) that the price of paddy claimed in the Execution Petition was excessive. These objections were overruled by the 1st court and the execution allowed to proceed. The judgment-debtor-respondent took up the matter in appeal before the lower appellate court and the said court reversed the findings of the 1st court on the first two grounds and confirmed the findings of the other two. The decree-holder has come up in second appeal. Section 17(1)(e) of the Indian Registration Act makes it obligatory that a non-testamentary instrument transferring any decree when such decree purports or operates to create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees and upwards to or in immovable property shall be registered. The question for consideration is whether the decree sought to be executed in this case is one which comes within the scope of the aforesaid section of the Indian Registration Act. The decree was for recovery of possession with arrears of rent on the basis of a lease deed. It is admitted that recovery of possession of the property had already been taken and the decree now sought to be executed is only the decree for arrears of rent. Be it also noted that no charge was created under the decree on any immovable property. Therefore, it is difficult to hold that the decree purports or operates to create, declare, assign, limit or extinguish any right, title or interest to or in any immovable property. Consequently it follows that the decree does not come within the scope of Section 17(1)(e) of the Indian Registration Act and therefore the transfer of this decree does not require registration.

The learned District Judge has referred to three decisions, but on perusal of those decisions I find that they have no application to the case in hand. Mr. Ramanatha Pillai, the learned advocate of the appellants, invites my attention to another decision of the Madras High Court in (Adivi) Krishnayya Vs. (Thummalapally) Sriramulu and Others, , wherein a Division Bench of the Madras High Court held that the assignment of a personal decree against one defendant did not require registration, though in the same decree there was also a mortgage decree against another defendant. Similarly, in the case before me the assignment of a personal decree does not require registration, though the same decree granted another relief by way of recovery of possession of immovable properties, which relief had already been satisfied and the decree regarding that is no more alive.

The next ground of attack by the learned advocate of the appellants is regarding the alleged satisfaction of the decree by payment to the original decree-holder. Order XXI, R. 2(1) of the CPC lays down that where any money payable under a decree of any kind is paid out of court or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the court whose duty it is to execute the decree, and the court shall record the same accordingly. Sub rule (3) of the same Rule enacts further that the payment or adjustment, which has not been so certified or recorded shall not be recognized by any court executing the decree. Art. 174 of the Limitation Act prescribes a period of 90 days from the date of payment or adjustment, for the issue of a notice under Order XXI, R. 2(2) to the decree-holder to show cause why such payment or adjustment should not be recorded as certified. In this case there is no contention that the payment or adjustment alleged to have been made by the judgment-debtor to the original decree-holder had ever been sought to be certified under the aforesaid provision of the CPC within the time prescribed by the Limitation Act. Therefore, Order XXI, R. 2(3) directly applies to the present case with the result that the alleged payment shall not be recognized by the executing court. In the aforesaid view on these two questions I allow the second appeal, set aside the decision of the lower appellate court and restore that of the trial court. But I would make it clear that the observation of the learned District Judge leaving open the question as to whether the prayer in the E. P. for attachment of immovable properties was a fresh prayer or not will stand. The parties are directed to bear their respective costs in the second appeal.