Shri Thakurji vs Dwarika Ram and others

Fazl Ali, J.—The question raised in this second appeal is whether an instrument assigning a decree for money requires registration. It appears that the plaintiff having obtained a decree against defendants 3 and 4, attempted in execution of his decree to attach another decree which defendants 3 and 4 had obtained against one Baldeo Prasad. Before, however, the latter decree could be attached, defendants 3 and 4 had already assigned it to defendant 1. The case which the plaintiff set out in his plaint was that the assignment was fraudulent and without consideration, but this case has been rejected by both the Courts below and it has been held that the decree in question having been already assigned by defendants 3 and 4 could not be attached by the plaintiff in execution of his decree. In this Court, however, it is urged for the first time on behalf of the appellant that the assignment in order to be valid required registration and reliance is placed on S. 54, T.P. Act, in support of the contention. S. 54 is the first section in Ch. 3 which relates to sale of immoveable property. It defines sale as a transfer of ownership in exchange for a price paid or premised or part paid and part-promised and then provides as follows:

Such transfer, in the case of tangible immoveable property of the value of Rs. 100 and upwards, or in the case of reversion or other intangible thing, can be made only by a registered instrument.

It is contended on behalf of the appellant that the decree is an intangible thing and therefore the assignment of a decree requires registration under S. 54. Before I consider the effect of S. 54, T.P. Act, it appears to me necessary to refer to the Registration Act. S. 17, Cl. (e), Registration Act, is the only section in the Act which deals with instruments transferring or assigning decrees and under it

non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree, order or a ward purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent or the value of Rs. 100 and upwards to or in immoveable property

must be registered. It is note-worthy that no provision was made in this clause for the registration of an instrument transferring or assigning a decree for money and it is to be remembered that this clause was added as recently as in the year 1929 and the necessity for adding it arose because so me of the High Courts had held that an instrument of assignment of a mortgage decree for Rs. 100 or upwards did not require registration. In Gous Mohammad v. Khawas Ali Khan, (1896) 23 Cal 450, the learned Judges of the Calcutta High Court in dealing with this question observed:

Now let us see what the nature of the document objected to in the present case is. It is a deed of assignment, not of any property covered by the decree, but of the decree itself, and the decree, though it be a decree upon a mortgage bond, can in no sense be regarded as immoveable property. It clearly does not come within the definition of immoveable property given in the Registration Act, and we must, in applying the provisions of the Registration Act, be careful to distinguish between a decree and the property covered by it. Then, does the assignment in itself purport or operate to create any right, title or interest in any immoveable property? Clearly not. It may be the indirect means to the creation of such an interest if the Court under the provisions of S. 232, Civil P.C., thinks it fit to allow the application of the assignee claiming under this document....The letter of the Registration law does not therefore support the contention raised on behalf of the appellant.

Nor do we think the spirit of the Registration law in any way favors that contention. We do not think that the Registration Act was ever intended to apply to a document like an assignment of a decree, when the CPC itself (see S. 208 of Act 8 of 1859 and S. 232 of the present Code) makes ample provision for preventing in cases like the present, fraud or falsehood, such as the law relating to registration of documents is meant to guard against S. 232 of the Code expressly provides that "where a decree has been transferred by assignment, notice in writing of such application shall be given to the transferor and the judgment debtor, and the decree shall not be executed until the Court has heard their objections, if any."

I have quoted this message in extensor because in my judgment it provides some answer to the contention raised on behalf of the appellant in the present case. The case which I have referred to was decided by the Calcutta High Court long after S. 54, T.P. Act, had been enacted and it was never suggested either in that case or in any of the subsequent cases decided in the Allahabad and the Calcutta High Courts in which the same view was taken that S. 54, T.P. Act, applied to an instrument assigning or transferring a decree. It is clear that if S. 54 is held to apply to a decree for money there is all the more reason to hold that it applies to an instrument transferring a decree relating to immoveable property. If, however, this view be correct, then we are forced to the conclusion that the amendment of the Registration Act by adding Cl. (a) to S. 17 of the Act was not only superfluous but meaningless. The expression intangible thing" which is used in S. 54, T.P. Act, applies to such incorporeal rights as easement, right to receive rent and profits, etc., and it could not have been meant to cover a simple decree for money or for possession of immoveable property. Even assuming, however, that the term is wide enough to cover rights created under a decree of the Court, I am of the opinion that having regard to the context in which the expression is used, it must be construed to mean something ejusdem generis with the other objects mentioned in the section. As I have already stated, Ch. 3 in which S. 54 occurs deals with sale a of immoveable property.

A decree for money can by no stretch of reasoning be regarded as immoveable property and if it is to be regarded as an intangible thing, it is not an intangible thing of the class to which S. 54 was intended to apply. Indeed if it was intended by S. 54 to cover an instrument transferring a simple decree for money as well as a decree for immoveable property or a decree of any kind, it would have been redundant to provide in O. 21, R. 16, Civil P.C., that where a decree is transferred by assigning in writing, the transferee may apply for execution of the decree to the Court which passed it. This rule as well as S. 232 which was its equivalent in the earlier Code has been construed in various decisions and the view which has been consistently taken is that one of the conditions which must be fulfilled before the transferee of a decree-holder can apply for the execution of the decree assigned to him is that the transfer made to him must have been effected in writing: [see Javermal Hirachand v. Umaji Hayabati, (1885) 9 Bom 179 and Parvata v. Digambar, (1891) 16 Bom 307] It is a well recognized principle that Statutes must as far as possible be construed so as to produce harmony and not discord. If, therefore, S 54 was intended to lay clown that the instrument transferring the decree for money or otherwise must be registered, one would have expected to find a corresponding provision relating to registered instruments in O. 21, R. 16. Having regard to all these circumstances I am of the opinion that the contention of the appellant cannot be accepted and the appeal must, therefore, be dismissed with costs. This seems to be a fit case for granting leave to appeal hinder the Letters Patent.