John v. Mariakutty — 1965 DIGILAW 340 (KER)

JUDGMENT C.A. Vaidialingam, J. 1. In this appeal, on behalf of the decree-holder appellant, Mr. S. Neelakanta Iyer learned counsel challenges the order of the learned District Judge of Quilon holding that an execution petition filed by the appellant, namely E. P. 111 /1959 in O.S. 37/51 is barred by limitation. 2. There is no controversy that the decree in the suit was passed oh 21st October 1953, after the Indian Limitation Act, 1908 (Act 9 of 1908) had come into force. The execution petition, namely E. P. 111/59, again there is no controversy, was filed only on 21st October 1959, and no prior execution petition had been filed by the appellant. The present petition was filed just on the last day of the expiry of 6 years from the date of decree, which is 21st October 1953. According to the learned District Judge, inasmuch as the decree was passed after the Indian Limitation Act, 1908 had come into force, the period of limitation will have to be computed on the basis of the Articles contained in that statute. And it is also the view of the learned Judge though not expressed in so many terms that inasmuch as the decree is not a registered decree, as per the provisions of Article 182 of the First Schedule of the Indian Limitation Act, 1908, which come into play, the execution is barred. 3. Under Article 182 of the Indian Limitation Act, 1908, the period of limitation for the execution of a decree or order of any civil court is three years; but where a certified copy of the decree or order has been registered, then the period of limitation is six years. And without referring to any of the other matters referred to in column 3 of Article 182, it is only necessary to note that the period of limitation normally begins to run from the date of decree or order. I am particularly referring to this aspect, because in this case there has been no appeal or application for review, etc. Therefore, the period of limitation will normally begin from the date of the decree or order. Therefore, if the provisions of the Indian Limitation Act, 1908 apply, and inasmuch as a certified copy of the decree or order has not been registered, the view of the learned District Judge must be upheld. 4. But according to Mr. Therefore, the period of limitation will normally begin from the date of the decree or order. Therefore, if the provisions of the Indian Limitation Act, 1908 apply, and inasmuch as a certified copy of the decree or order has not been registered, the view of the learned District Judge must be upheld. 4. But according to Mr. Neelakanta Iyer, learned counsel for the appellant, in accordance with the practice prevailing on the date, when the suit was instituted, i.e., in 1951, under the provisions of the Travancore Civil Courts Guide, the appellant has admittedly paid in cash, along with the plaint, a sum of 12 annas, so as to have the decree that may be passed in the suit, registered in accordance with the provisions of section 15 of the Travancore Registration Act. I will immediately advert to the said provision, as well as to some other rules in the Travancore Civil Courts Guide. Therefore, in this case, according to the learned counsel for the appellant, when the sum of 12 annas is paid along with the plaint, as is obligatory, the fact that the Indian Limitation Act, 1908, had come into force on the date when the decree in this suit had been passed, namely 21st October 1953, is of no consequence whatsoever. In this connection the learned counsel referred me to the provisions contained in section 6 of the Part B States (Laws) Act, 1951 (Act III of 1951), which made the Indian Limitation Act and the Indian Registration Act applicable to the T-C. State. The learned counsel relied particularly on the proviso to section 6 of the Part B States (Laws) Act; and on that basis urged that a right or privilege, so to say, has accrued to the appellant under the Travancore Registration Act, when the amount, for the purpose of having the decree registered under section 15 of the Travancore Registration Act, was paid on the date of institution of the suit, along with the plaint. I understood the learned counsel to urge that the repeal of the Travancore Registration Act (hereinafter to be referred to as the Act) by the Part B States (Laws) Act, 1951, or the introduction of the Indian Limitation Act, will not in any manner affect the rights of his client. I understood the learned counsel to urge that the repeal of the Travancore Registration Act (hereinafter to be referred to as the Act) by the Part B States (Laws) Act, 1951, or the introduction of the Indian Limitation Act, will not in any manner affect the rights of his client. That is, according to the learned counsel, the decree in the present suit must be considered to have been registered under section 15 of the Travancore Act, and therefore, the period of limitation for filing an execution petition is six years. Alternatively the learned counsel urged that inasmuch as the obligation to send the decree for registration to the Sub Registrar is cast on the courf under section 15 of the Travancore Act, the failure of the court to discharge its obligation, should not operate to the prejudice of his client. For this the learned counsel relies on the well known maxim that the act of the court should not injure or harm any party to a proceeding. 5. Therefore, the essential question that arises for consideration in this case is as to whether any right or privilege has accrued to the appellant under the provisions of the Travancore Act, and which has been preserved by the proviso to section 6 of the Part B States (Laws) Act, 1951 (Act III of 1951). 6. According to Mr. T. K.Kurien learned counsel for the respondents, Part B States (Laws) Act, 1951, has come into force on 22nd February 1951, and the Indian Limitation Act as well as the Indian Registration Act have been made applicable to the T.C. State on 1st April 1951. The learned counsel pointed out that in this case there can be no controversy that the Part B States (Laws) Act, III of 1951, repeals the Travancore Registration Act and the Travancore Limitation Act, and on the date when the decree in this case was passed, namely 21st October 1953, the Travancore Act ceased to be in force, and therefore no action can be taken by the Court under section 15 of the said Act; even if the decree had been sent for registration by the Court to the Sub Registrar, no registration can be effected by the latter under the provisions of that statute which had been repealed. According to the learned counsel, it cannot certainly be stated that by the mere fact that the appellant paid in cash, the sum of 12 annas for the purpose of having the decree that may be passed in the suit registered under the Travancore Act, any right or privilege has accrued to the appellant which is saved under clause (b) of the proviso to section 6 of the Part B States (Laws) Act. Therefore, according to the learned counsel, inasmuch as on the date when the decree was passed, the Indian Limitation Act had come into force, for the purpose of calculating the period of limitation for filing an execution petition, the provisions of Article 182 of the Indian Limitation Act, 1908 will apply; and the period will be either three years or six years in accordance with as the decree is not registered or registered, as provided in column 2 of Article 182. 7. In order to appreciate the contentions taken by learned for the appellant and the respondents, it is necessary to refer to the provisions of section 15 of the Travancore Act (Act II of 1087), as well as to certain rules bearing on the subject, contained in the Travancore Civil Courts Guide. Section 15 of the Travancore Act, occurring in Part IV, provides for the court sending a memorandum of the decree or order, which deals with any of the matters referred to therein, to the Sub Registrar within whose sub district the whole or any portion of the property is situate. It also makes provision to the effect that such memorandum shall, so far as may be practicable, describe the property in the manner required by section 14 of the Act. There is a further provision to the effect that the memorandum so received, shall be filed in Book 1, by the Sub Registrar. Therefore, in respect of decrees or orders dealing with one or other of the matters referred to in section 15 and passed by a court, the court will have to send a memorandum of the decree or order to the Sub Registrar concerned for the purpose of registration. Therefore, in respect of decrees or orders dealing with one or other of the matters referred to in section 15 and passed by a court, the court will have to send a memorandum of the decree or order to the Sub Registrar concerned for the purpose of registration. If the Travancore Act had been in force on 21st October 1953, when the decree in the present suit was passed, it is needless to state that there would have been an obligation on the part of the court, without any further initiative from the party, to have forwarded the decree or order for registration; in which case the appellant would certainly have got an enlarged period of limitation, viz., six years, because then the decree will be considered to be a registered decree. It may also be that if that Act had been in force on the date when the decree was passed, the failure on the part of the court to send the same for registration, will not operate to the prejudice of the party, as has been laid down by a Full Bench of the Travancore High Court in the decision reported in Devasya v. Narayanan Nair 1946 Travancore Law Reports 409. The learned Judges in that decision have considered this matter rather elaborately and laid down that section 15 of the Travancore Act imposes a duty upon the court to send the decree for registration in certain cases, and registration is entirely independent of the will of parties. The learned Judges, emphasise, that under those circumstances if the court fails to discharge its obligation properly, the party cannot be penalised for the neglect of court. The learned Judges also advert to the fact that on payment of the requisite fee by the party, it is the duty of the court to send the memorandum of the decree or order, as per section 15 of the Travancore Act and get the decree registered. In fact, Mr. The learned Judges also advert to the fact that on payment of the requisite fee by the party, it is the duty of the court to send the memorandum of the decree or order, as per section 15 of the Travancore Act and get the decree registered. In fact, Mr. Neelakanta Iyer learned counsel for the appellant before me has relied very strongly on these observations of the learned Judges of the Full Bench in support of his contention that the moment the sum of 12 annas, which is necessary for the purpose of getting the decree registered, has been paid by his client on the date of institution of the suit, along with the plaint, his client gets, so to say, a vested right to have the decree registered automatically by the court. I am not inclined to accept this contention of the learned counsel, because the Full Bench of the Travancore High Court, did not have occasion to consider, as to whether there is still an obligation on the part of the court to have the decree registered under section 15 of the Travancore Act, when that Act itself ceased to be in force at the time of passing of the decree. 8. The learned Judges of the Travancore High Court, in the Full Bench decision referred to above, have referred to certain rules in the Travancore Civil Courts' Guide; in support of their conclusion that inasmuch as a party is bound under those rules to pay the registration charges for having the decree registered, even at the time of instituting the suit, and inasmuch as there is an obligation on the part of the court under section 15 of the Travancore Act to forward the memorandum of decree or order to the Sub Registrar for registration, the non-observance of those provisions by the court and the non-sending by the court of the decree for registration, should not operate to the prejudice of the party. In fact I am myself going to advert to these rules and point out that those rules are only for the purpose of providing a proper guidance to parties and the court regarding the various matters which are to be complied with for the purpose of having a decree, which relates to any of the matters referred to in section 15 of the Travancore Act, registered. But, in my opinion, all those rules will have effect only if the Act, namely the Travancore Act, is in force at the time when the decree is passed and only if the decree that is passed can be registered under that Act. But if the Travancore Act itself has disappeared, as is the case with the case on hand, at the time when the decree itself is passed, in my opinion, there is no question of any failure on the part of the court to comply with the provisions of any statute; because if the said Act is not in force on the date when the decree is passed, the court cannot take any action on the basis of section 15 which will not also be in force; and the Sub-Registrar also cannot effect any registration of the decree under that Act, because that Act had ceased to be in force. 9. The rules, to which reference has to be made in the Travancore Civil Court's Guide, are rules 14, 194, 196, 513 and 557. They are all rules framed by the High Court of Travancore under the rule-making power vested in it under the corresponding Civil Procedure Code. Rule 14 occurs in the chapter dealing with general matters and form of proceedings. The only point to be noted in this rule is that along with appeal, plaint, original petition, among the various other matters which have to be filed, there is also provision to the effect that the party is to pay the registration fees. Rule 194, which occurs under the heading " Cash deposits", deals with cases where the payment may be made in cash into the court. One of the items, namely item 14 in this rule, relating to registration expenses, is one of the items in respect of which the party can pay cash to the Head Ministerial Officer or other officer of the court authorised by the Judge. Rule 196, occurring under the same heading, relates to refund of any cash which is paid by the party into the court and which has not been utilised for the purpose, for which it was paid. This rule will also take in the registration expenses, which, may have been paid by a party in cash into the court, and which was not utilised for some reason or other. Rule 513 occurs under the heading 'Decree section'. This rule will also take in the registration expenses, which, may have been paid by a party in cash into the court, and which was not utilised for some reason or other. Rule 513 occurs under the heading 'Decree section'. Provision is made therein to the effect that the decree clerk should properly check and find out and satisfy himself whether proper registration fee has been levied, with reference to the schedule of properties, to be appended to the decrees; and if any deficit fee has to be realised, he should promptly report the fact to the Head Ministerial Officer and obtain orders of court therefor. The only other rule that requires to be noted is rule 557 occurring under the heading 'Copies and Copyist Establishment'. Under this rule, which relates to memorandum of decree or order affecting immovable property, provision is made to the effect that in respect of such decrees or orders the court shall cause a memorandum of the said decrees or order to be promptly prepared and sent by the Copyists Establishment to the Sub-Registrar. It also makes provision to the effect that such memorandum shall, so far as may be practicable, describe the property in the manner prescribed by section 14 of the Registration Act. Sub-rule (3) of this rule states that the court shall levy a fee of five and one fourth fanams in court fee stamps, along with the presentation of the plaint, for every memorandum of decree or order which has to be sent to the Sub-Registrar. Sub-rule (4) states that out of the 51/4 fanams levied, as referred to in sub-rule (3) three and a half fanams shall be deemed to be registration revenue and one and three-fourth fanams copying fees. This is broadly the scheme of the rules contained in the Travancore Civil Courts' Guide. 10. The contention of Mr. Neelakanta Iyer, learned counsel for the appellant is that the various rules referred to above will clearly indicate that there is an obligation on the part of the party whether he is a plaintiff or appellant when presenting the plaint or memorandum of appeal, in respect of which a decree In the manner specified in section 15 of the Travancore Act will be passed, to pay the necessary fees for the purpose of enabling the court to send it for registration to the concerned registration authority. In this case, the learned counsel pointed out that on the date of presentation of the plaint, the Indian Limitation Act or the Indian Registration Act had not come into force, and the relevant statute that was in force was the Travancore Act and the provisions contained in the rules contained in the Travancore Civil Courts Guide. The learned counsel also pointed out that the appellant has already paid the registration fee under those rules. Therefore, according to the learned counsel, it must be held that in this case, by the payment of the registration fee, in order to have the decree ultimately to be passed registered under the Travancore Act, and also by the passing of the decree in the suit, a right or privilege, so to say, has been acquired by or has accrued to the appellant to have the decree registered under the Travancore Act, irrespective of the fact whether the said Act was in force or not on the date the decree or order was passed. The further contention of the learned counsel is that such a right acquired or privilege accrued, has been expressly saved under clause (b) of the first proviso to section 6 of the Part B States (Laws) Act, 1951 (Act III of 1951). 11. In my opinion this contention of the learned counsel cannot be accepted. The learned counsel no doubt referred me to the decision of Varadaraja Iyengar, J. and myself, reported in Mathevan v. Mathevan Pillai 1958 K.L.T. 441 wherein we had held that where a memorandum of decree or order, relating to immovable property in that case, has been registered under the provisions of the Travancore Act, the party is entitled to have a larger period of limitation, namely six years, notwithstanding the fact that the Indian Limitation Act, which had come into force at the time the execution petition was filed, did not refer to registration of memorandum of decree or order; on the other hand, the provisions contained in Article 182 of the Indian Limitation Act provide for the period of limitation for execution of decree as three years, but an enlarged period of six years is given where a certified copy of the decree or order has been registered. The essential difference between the provisions contained in Article 166 of the Travancore Limitation Act and Article 182 of the Indian Limitation Act, is that under the former, provision was made for an enlarged period of limitation of six years, where (a) a certified copy of the decree or order has been registered, and (b) a memorandum of decree or order relating to immovable property is entered or filed as required by section 15 of the Travancore Act; whereas under the latter Act, ordinarily the period of limitation is three years, but an extended period of six years is given only under one circumstance, namely where a certified copy of the decree or order has been registered. The contention that was raised before the Division Bench in that case was that the memorandum of decree or order had no doubt been registered under the Travancore Act; but at the time when the execution petition was filed, the Travancore Act was repealed and the Indian Limitation Act had come into force; and therefore no extended period of limitation has been given under Article 182 of the Indian Limitation Act where a memorandum of the decree or order relating to immovable property is entered or filed before the Sub-Registrar. In that connection Varadaraja Iyengar, J., delivering judgment on behalf of the Division Bench, has referred to the provisions contained in Article 166 of the Travancore Limitation Act and also those contained in Article 182 of the Indian Limitation Act, as well as the provisions contained in section 6 of the Part B States (Laws) Act, III of 1951. After referring to those provisions, the Court expressed the view that, in that case, inasmuch as registration has been effected in accordance with the law which was then in force, which no doubt has been repealed by section 6 of the Part B States (Laws) Act, 1951, nevertheless, by virtue of the second proviso to section 6 of the Part B States (Laws) Act, the registration effected under the Travancore Act, must be considered to be registration effected under the corresponding provisions of the Indian Registration Act which has been extended to the State of Travancore-Cochin. That decision also, in my opinion, does not assist the learned counsel for the appellant in the present case, to support his contention that even though the Travancore Act was not in force, on the date when the decree in the present case was passed, nevertheless there is a right or privilege acquired by the appellant to have the decree registered under a repealed enactment also. In my opinion the entire scheme of the Travancore Civil Courts Guide is only to this effect, namely that it proceeds on the basis that a memorandum of decree or order relating to the matters contemplated in section 15 of the Travancore Act will have to be registered before the appropriate Sub Registrar. Those rules proceed on the basis that the Travancore Act will be in force and will also be available when the decree is passed. If, on the date when the decree is passed, the said statute disappears, in my opinion, there is nothing further that could be done "by the court on the basis of section 15 of the repealed statute, nor can the Sub Registrar function under the Act, which ceases to be in force. 12. One can very well appreciate the contention of the learned counsel for the appellant that a right or privilege can be considered to have been acquired by his client, if a registration, in respect of the matters referred to in section 15 of the Travancore Act has been effected. That was the case before the Division Bench which has been referred to earlier and of which I was a member. In the present case none of the saving provisions contained in the Part B States (Laws) Act, Act III of 1951 comes to the rescue of the appellant to urge that notwithstanding the fact that the Travancore Act was not in force on the date when the decree in the present case was passed, nevertheless it must be considered that there has been an omission or negligence on the part of the court in not sending the decree or order for registration under the provisions of that Act and that in turn it must be deemed that the decree in question is one which has been registered and therefore the six years period of limitation is available for the purpose of filing the execution petition. This contention, in my opinion, cannot certainly be accepted. This contention, in my opinion, cannot certainly be accepted. 13. Therefore, the position ultimately is that, however hard the result may be, on the date when the decree in this case was passed, namely 21st October 1953, the Travancore Act was repealed, and there was nothing further that could be done on the basis of that repealed statute and section 15 of that Act cannot also come into play; and none of the provisions contained in the Travancore Civil Courts' Guide also can be of any help to the appellant. But the appellant could very well have got a refund of the registration charges under rule 196 of the Travancore Civil Courts Guide, referred to above, and the court could also have refunded that amount to the appellant, because it could not be utilised for the purpose for which it was deposited. The mere deposit along with the plaint though required by the rules of the registration charges, cannot, in my opinion, enable the appellant to urge that by such deposit alone he has acquired a right or privilege to have the decree registered under the Travancore Act, even though that Act may not have been in force at the time when the decree was passed. The material point of time that has to be considered for the purpose of considering whether the party has acquired a right or privilege under the repealed Act, is whether, on the date when the decree was passed, action had been taken under the repealed Act for having the decree registered, or a memorandum of the decree relating to immovable property had been entered or filed. In such a case, the appellant could certainly have relied upon the Division Bench decision referred to above. 14. The result therefore is that the view expressed by the lower court that the very first execution petition filed by the appellant on the last day of expiry of six years from the date of passing the decree, is barred by limitation, is perfectly correct. The appeal fails and is dismissed. But parties will bear their own costs.