Research › Search › Judgment

Karnataka High Court · body

2009 DIGILAW 916 (KAR)

C. S. Gangamma v. Puttaramaiah

2009-11-30

S.N.SATYANARAYANA

body2009
Judgment :- This is Decree Holder’s revision challenging the order dismissing Execution Petition filed by him in Ex. Case No.46/2006 on the file of Additional Civil Judge (Sr.Dn.). Ramanagara, by an order dated 12.12.2008. 2. The facts leading to this revision petition are as under: The petitioner herein is purchaser of an extent of 1 acre of agricultural land in Sy.No.80/1 of Chikkenahalli Village, Kasaba Hobli, Channapatna Taluk, from one Puttaramaiah. S/o late Subbegowda under a Sale Deed dated 08.07.1993. Initially, the said land was mortgaged to the Decree Holder by Puttaramaiah for a loan of Rs.20,000/- on 09.10.1991. Thereafter Puttaramaiah decided to sell the said land and as he was in need of funds to clear the mortgage loan of Decree Holder herein and also to meet his family necessity. At that time, Puttaramaiah gave first offer to the Decree Holder, who agreed to purchase the same for valuable consideration of Rs.50,000/-. After adjusting the mortgage loan of Rs.20,000/- towards part sale consideration, the Decree Holder paid the balance sale consideration of Rs.30,000/- to the said Puttaramaiah. 3. On receipt of balance sale consideration of Rs.30,000/- the said Puttaramaiah executed the Sale Deed of aforesaid land in the presence of attesting witness and presented the Sale Deed for registration in the office of jurisdictional Sub-Registrar. However, before said Sale Deed could be registered Puttaramaiah went out of the Sub-Registrar office on the pretext that one of his child is unwell. Thereafter he never came back and the document of conveyance which was executed and presented for registration was kept pending for registration. 4. Thereafter on an application by the petitioner seeking completion of the registration formality, the Sub-Registrar refused to register the document, against which an appeal was filed by the Decree Holder herein in R.A.No.19/1996-97 before the District Registrar, Bangalore, under Section 13 of the Registration Act. During the pendency of the said appeal, the executor of the Sale Deed, Puttaramaiah died and his wife and children came on record. The said appeal filed before the District Registrar, was dismissed on 20.05.2002 holding that under the Indian Registration Act, two witnesses are required to prove the execution of the Sale Deed. Since the plaintiff examined only one witness, appeal came to be dismissed on that ground. Thereafter the Decree Holder herein filed a suit in O.S.No.103/2002 on the file of Additional Civil Judge (Sr.Dn.). Since the plaintiff examined only one witness, appeal came to be dismissed on that ground. Thereafter the Decree Holder herein filed a suit in O.S.No.103/2002 on the file of Additional Civil Judge (Sr.Dn.). Ramanagara, for the relief of declaration that 1st defendant Puttaramaiah, owner of suit schedule property executed a sale deed dated 8.7.1993, directing the 2nd defendant Sub-Registrar to register the sale deed on even date, for permanent injunction restraining defendants 1(a) to 1(d) from interfering with lawful possession and enjoyment of the suit schedule property. 5. The said suit came to be decreed by Judgment and Decree dated 26.10.2005 pursuant to which the petitioner herein filed Execution Petition in Ex.No.46/2006 on the file of the Additional Civil Judge (Sr.Dn.). Ramanagara, seeking direction to the second respondent in complete the registration formality of the Sale Deed dated 08.07.1993 executed by Puttaramaiah in her favour. 6. In the said execution proceedings, the respondents entered appearance and raised an objection that under Section 77 of the Registration Act, the Decree Holder should present the document before the jurisdictional Sub-Registrar for completing registration formality within 30 days from the date of decree in the original suit, failing which the Sale Deed cannot be registered and Decree Holder cannot file execution proceedings. Since the petitioner has failed to present the Sale Deed for registration within the stipulated time, the execution petition is not maintainable and the same should be dismissed. 7. In the said proceedings, the petitioner herein who is the Decree Holder contended that the failure to present the document within thirty days of the Decree for completion of registration formality is procedural in nature and on that ground itself, the Court cannot refuse to enforce the decree which is secured by her. In support of the said submission she relied upon the Judgment of this Court reported in 2003(1) KAR.L.J. 441 in the matter of Anjinamma and another Vs. Puttahariyappa and Others, wherein this Court has held as under: “Registration Act, 1908. Section 77(1) – Registration of document – Decree of Court for – Delay in presenting document for registration within 30 days of decree due to delay attributable to both Court and party – Party, held, cannot be deprived of benefit of decree – Registering Authority directed to register document.” 8. Section 77(1) – Registration of document – Decree of Court for – Delay in presenting document for registration within 30 days of decree due to delay attributable to both Court and party – Party, held, cannot be deprived of benefit of decree – Registering Authority directed to register document.” 8. The executing Court after going through the same, opined that such liberal view in condoning the delay can be taken only by the High Court and not by Executing Court, with this observation, Execution Court has dismissed the petition, challenging the same the petitioner has filed this revision petition. 9. In this petition, though the respondents were duly served, they remained unrepresented. 10. Heard the counsel for petitioner. Perused the impugned order dated 12.12.2008 passed by the Executing Court in Execution Case No.46/2006 and also the Judgment and Decree dated 2610.2005 passed in O.S.No.103/2002. The operative portion of the Judgment is as under: “The suit of the plaintiff is decreed. The plaintiff is declared to be the purchaser of the suit schedule property. The defendants are directed to execute the sale deed dated 08.07.1993. Falling which, the defendant No.2 shall proceed to register the document. The defendants are restrained from interfering in plaintiff’s possession and enjoyment of suit schedule property. Looking to the circumstances arising in the case, I direct the parties to bear their own costs. Draw up preliminary decree accordingly.” 11. A Reading of the operative portion of the Judgment in O.S.No.103/2002 clearly discloses that the Trial Court after considering the entire pleadings of the parties, evidence on record, has decreed the suit declaring that the petition herein (plaintiff in the said suit) is the purchaser of suit schedule property with a direction to defendant Nos.1(a) to 1(d), i.e., widow and children of late Puttaramaiah to execute the Sale Deed dated 08.07.1993 and to register the same in favour of plaintiff, I.e., petitioner herein, only on their failure to do so, there is direction to defendant No.2 to proceed to register the said document. Therefore, there are two reliefs granted in favour of plaintiff in the said suit, one is to get the Sale Deed executed by legal heirs of Puttaramaiah in respect of the suit schedule property and another is direction to defendant No.2, namely the Sub-Registrar, Channapatna, to register the Sale Deed dated 08.07.1993. 12. Therefore, there are two reliefs granted in favour of plaintiff in the said suit, one is to get the Sale Deed executed by legal heirs of Puttaramaiah in respect of the suit schedule property and another is direction to defendant No.2, namely the Sub-Registrar, Channapatna, to register the Sale Deed dated 08.07.1993. 12. Admittedly the Judgment and Decree dated 26.10.2005 passed in O.S.No.103/2002 on the file of Additional Civil Judge (Sr.Dn.), Ramanagara, is not challenged by the said legal heirs of late Puttaramaiah, thereby the said Judgment and Decree has become final and the declaration passed in the said suit that plaintiff is the purchaser of suit schedule property has become final, so also direction issued to the said legal heirs of late Puttaramaiah to execute the Sale Deed in favour of petitioner herein has also become final. In the said Judgment and Decree, there was liberty to petitioner herein to secure the Sale Deed directly from the legal heirs of Puttaramaiah at the first instance and only after their refusal to comply with the same, petitioner herein was permitted to approach defendant No.2 in the suit, namely, the Sub-Registrar, Channapatna, to seek completion of registration formality of Sale Deed dated 08.07.1993. 13. As could be seen from the averments made in the affidavit filed in support of Execution Petition, it is seen that petitioner herein has exercised the said option of approaching the legal heirs of late Puttaramaiah, pursuant to the direction of the Trial Court in its Judgment and Decree dated 26.10.2005. Only after refusal by the legal representatives of Puttaramaiah to carry out registration formality, Execution Petition was filed by decree holder seeking the assistance of Executing Court to get the Sale Deed registered with the assistance of Court. Under these circumstances, the Judgment of this Court relied upon by the petitioner’s counsel reported in 2003(1) KAR L.J. 441 in the matter of Anjinamma and another Vs. Puttahariyappa and Others. Under these circumstances, the Judgment of this Court relied upon by the petitioner’s counsel reported in 2003(1) KAR L.J. 441 in the matter of Anjinamma and another Vs. Puttahariyappa and Others. As referred to supra which reads as under clearly apply to the facts of this case: “I have heard the learned Counsel and perused the endorsement and also the explanation offered by the petitioner at para 4 of the petition for not having presented the document within 30 days from the date of passing of the decree which reads thus: “It is submitted the petitioners are illiterate and innocent agriculturists, petitioner 1 is asthma patient and suffering from hepatitis and others, she required regular treatment and also not well-versed with legal matter, applied for certified copy of the judgment on 8.3.2001 and the same was made available on 2.4.2001, in the meanwhile 1st petitioner fell ill, she was under regular treatment, by a local Doctor, who advised complete rest. A copy of the medical Certificate was produced and marked as Annexure-B. After little regain and collecting the case papers and decree copy, sale deed has been presented for registration on 18.3.2002 before the respondent 7, he refused to receive the deed for registration on the ground, documents have to be presented within 30 days from the date of decree, hence same is barred by time and issued an endorsement to the effect on 18.3.2002 itself, the copy of the same is herewith produced and marked as Annexure-C accompany this writ petition, no opportunity offered to the petitioners before issuing of impugned endorsement.” 6. Further, in view of law laid down by the Patna High Court in the aforesaid case and by careful reading of Section 77 of the Act, it is clear that, prescription of 30 days time in the above provision for presenting the document for its registration after obtaining the decree before the Civil court is a procedural aspect which has to be viewed leniently to see that justice shall not suffer. The Apex Court in the case of Shreenath and Another v. Rajesh and Others, at paragraph 3 after interpreting Order 21, Rules 97(1) (2), 101, 99, 100 103 as they stood prior to the 1976 Amendment and also Rules 35 and 36 of the rules, has succinctly laid down the law which reads thus: “In interpreting any procedural law, where more than one interpretation is possible, the one which curtails the procedure without eluding justice is to be adopted. The procedural law is always subservient to and is in aid of justice. Any interpretation which eludes or frustrates the recipient which eludes or frustrates the recipient of justice is not to be followed.” 14. As could be seen, in the instant case, the delay in presenting the document for registration within thirty days of decree is directly attributable to both Court as well parties, for the reason that the Trial court did not specify in the decree that the plaintiff shall get the Sale Deed registered within thirty days from the date of decree under Section 77 of the Registration Act, 1908, instead the Court permitted the plaintiff to approach the defendant Nos.1(a) to 1(d) to get the Sale Deed executed directly and only on their failure to do so, petitioner was directed to present the Sale Deed dated 08.07.1993 before the Sub-Registrar. Channapatna, for registration. Therefore, by the time, petitioner exercised first option, thirty days had already elapsed and since the Trial Court had failed to fix the thirty days time limit for presentation of the document before the Sub-Registrar. Channapatna, from the date of filing of the petition, the Executing Court should have directed the jurisdictional Sub-Registrar to register the said Sale Deed, pursuant to the Judgment and Decree passed in O.S.No.103/2002. The Executing Court has failed to look into the matter in right perspective and has misdirected itself to hold that the Execution Petition is not maintainable. In the circumstances, order dated 12.12.2008 passed by the Additional Civil Judge (Sr.Dn.), Ramanagara, in Execution Petition No.46/2006 is set aside and the matter is remanded back to Executing Court, with a direction to pass necessary orders directing the Sub-Registrar, Channapatna to register the Sale Deed dated 08.07.1993 executed by late Puttaramaiah in favour of petitioner herein, within thirty days from the date of presentation of Sale Deed before the Sub-Registrar, after completion of registration formality. With these observations, the revision petition is allowed, without any order as to costs.