Ashrafali v. Hari Rama Birje @ Birse (Since Dead) by his LRs.
2020-12-15
H.B.PRABHAKARA SASTRY
body2020
DigiLaw.ai
JUDGMENT : H.B. PRABHAKARA SASTRY, J. 1. The petitioner being aggrieved by the order dated 15.03.2018 passed by the learned Senior Civil Judge, Khanapur (hereinafter referred to as the Executing Court , for brevity) closing the Execution Case in E.P.No. 01/2017 for the time being, with liberty to open when cause of action calls for, has preferred this revision petition. 2. As could be gathered from the materials placed before this Court, the present petitioner was the decree holder in O.S.No. 38/2014, in the Court of Senior Civil Judge & JMFC, Khanapur (hereinafter referred to as the trial Court for short) for the relief of specific performance of contract. The decree had directed the original judgment debtor Sri. Hari Rama Birje to execute a registered sale deed by receiving balance sale consideration of Rs. 8,50,000/- and to convey the title and possession of suit schedule property, which was an agricultural land measuring five acres bearing R.S.No. 122/5 situated at Muddekop village, Jamboti circle, Khanapur Taluk, Belagavi District. The judgment and decree was passed in favour of the petitioner on 28.09.2016 and three months time was given to the original judgment debtor to execute the sale deed, in case of his failure to execute, the plaintiff was given liberty to get the conveyance deed executed in due process of law. The plaintiff was directed to deposit the balance sale consideration amount of Rs. 8,50,000/- before the Court within a month from the date of the decree. Claiming that the original judgment debtor failed to execute the registered sale deed on the terms of the decree, the decree holder filed the execution case in E.P.No. 01/2017 for execution of the decree through the process of law. In the meanwhile, the original debtor having been died, his legal representatives were brought on record as the judgment debtors No. 1A to 1D, who are the present respondents No. 1 to 4. Since the judgment debtors No. 1A to 1D remained absent despite service of notice, they were placed ex-parte. Thereafter, by the order dated 18.09.2017, the Executing Court appointed one Sri. Vijay Shivarudrayya Hiremath as the Court Commissioner for execution of the registered sale deed through due process of law. On 20.02.2018, the Court Commissioner filed a memo along with an endorsement dated 06.02.2018, given by the Sub-Registrar, Khanapur and original commission warrant issued in his favour, however, unexecuted.
Thereafter, by the order dated 18.09.2017, the Executing Court appointed one Sri. Vijay Shivarudrayya Hiremath as the Court Commissioner for execution of the registered sale deed through due process of law. On 20.02.2018, the Court Commissioner filed a memo along with an endorsement dated 06.02.2018, given by the Sub-Registrar, Khanapur and original commission warrant issued in his favour, however, unexecuted. The matter was advanced at the instance of the decree holder for necessary directions to the Sub-Registrar, Khanapur. The matter was taken up by the Executing Court on 15.03.2018. The Court after perusing the endorsement issued by the Sub-Registrar, Khanapur, who had returned the document without registration citing the reason that no objection certificate issued by the competent authority under the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as the PTCL Act , for brevity), was not produced, proceeded to pass the following order: Dhr present. Sri. M. H. K, counsel for Dhr has advanced the instance case for issuance of necessary directions to Sub-registrar Khanapur to effect registration of sale deed through de process of law as he has referred decree in O.S.No. 38/2014 dated 23.09.2016 on the count that the process of registration was refused by subregistrar on the count that the purported registration is hit by provision of prevention of transfer of certain lands of Karnataka Schedule caste and Schedule Tribes Act, 1978. In addition to this heard court commissioner Sri. V.S.H who was appointed for execution of sale deed has also filed memo dated 20.02.2018 along with Commissioner warrant and endorsement of sub-registrar Khanpur. All this function it is vital to takes note of the powers of executing court is very limited and cannot go beyond decree. Hence having due regard to facts and circumstances of case, D.hr hereby directed to resort efficacies remedy before competent forum. Accordingly Execution petition closed for time being with liberty to open when cause of action calls for. Challenging the said order, the decree holder has preferred this revision petition. 3. The respondents, though were served with notice, since remained absent, the Court by its order dated 05.11.2020, requested the learned HCGP to assist the Court on the point of law raised by the learned counsel for the petitioner. 4. Though this matter is listed for admission, with the consent, the same is taken up for final disposal. 5.
3. The respondents, though were served with notice, since remained absent, the Court by its order dated 05.11.2020, requested the learned HCGP to assist the Court on the point of law raised by the learned counsel for the petitioner. 4. Though this matter is listed for admission, with the consent, the same is taken up for final disposal. 5. Heard the arguments from both side and perused the materials placed before this Court. 6. Learned counsel for the petitioner in his single sentence argument submitted that the Executing Court should have directed the Sub-Registrar to register the conveyance deed and they should have taken appropriate action, if warranted, under the PTCL Act, against the erring party. However, the execution of the decree ought not to have been denied for the alleged reason. He submitted that deprivation has to be made by the competent authority under the PTCL Act, but not by the Sub-Registrar. 7. Learned HCGP submitted that the role of the Sub- Registrar is not just to register each and every document produced before him for its registration, but wherever his act of registering the document is against any law or guidelines, then he can return the document un-registered. Stating that the said point has been extensively observed by the coordinate Bench of this Court, he placed a copy of the order dated 05.11.2020 passed by the coordinate Bench of this Court in the case of Sri. R. Sampath vs. State of Karnataka by Its Secretary, Department of Revenue and Others in W.P. No. 18660/2013. 8. The Sub-Registrar is required to follow the procedure laid down under the Karnataka Registration Rules, 1965 (henceforth referred to as the Registration Rules , for brevity). Rules 69 to 81 of the Registration Rules, and more particularly, Rule 171(1) mentions that Sub-Registrar can also refuse registration of documents in terms of what is stated in the subrule. Therefore, though the Sub-Registrar has got the power to register a document, equally he has got power to refuse the registration of a document also, however, the said power of refusal must be exercised within the parameters prescribed under the Karnataka Registration Act, 1908 (hereinafter referred to as the Registration Act , for brevity), as well the Registration Rules. 9. Section 71 of the Registration Act mentions that reasons for refusal to register should be recorded.
9. Section 71 of the Registration Act mentions that reasons for refusal to register should be recorded. Rule 171 of the Registration Rules also mentions that reasons for refusal to register has to be recorded in Book No. 2. When there is refusal for registration, as provided under Section 71 of the Registration Act, is appealable under Section 72 of the Registration Act. An appeal would lie to the Registrar to whom the said Sub-Registrar is sub-ordinate. Such an appeal is required to be filed within 30 days from the date of the order. 10. Thus, it is clear that a Sub-Registrar can refuse registration in terms of Section 71 of the Registration Act read with Rule 171 of the Registration Rules, for the reason recorded by him in book No. 2. A Coordinate Bench of this Court in R. Sampath vs. State of Karnataka by its Secretary, Department of Revenue and Others in W.P. No. 18660/2013 in its order dated 05.11.2020, has elaborately discussed the role of the Sub- Registrar when a document is presented for registration before him. After elaborate discussion, it is held that the document presented for registration has to comply with the requirement of the Registration Act and the Registration Rules for it to be registered. If the document does not comply with all the requirements, which are required then, the Sub-Registrar can refuse the registration by a reasoned order to be recorded in Book No. 2. Therefore, it is very clear that, merely because an Executing Court has appointed a Court Commissioner for execution of a sale deed in favour of the decree holder, it does not necessarily mean that the Sub-Registrar should invariably register that document though according to him several of the requirements for its registration has not been complied with by the parties to the documents. 11. In the instant case, the decree was for execution of a sale deed in favour of the decree holder, Incidentally in execution proceeding the Court appointed the Court Commissioner for the execution of the document. Thus, the decree was not a direction to the Sub-Registrar to compulsorily or invariably for registration of a particular document.
11. In the instant case, the decree was for execution of a sale deed in favour of the decree holder, Incidentally in execution proceeding the Court appointed the Court Commissioner for the execution of the document. Thus, the decree was not a direction to the Sub-Registrar to compulsorily or invariably for registration of a particular document. However, when the Court Commissioner has approached the Sub-Registrar seeking for registration of the document, the Sub-Registrar of Khanapur has given an endorsement to the party stating that a no objection certificate or a permission letter issued by a competent authority under PTCL Act is required to accompany the document for registration. 12. Thus, he has not out-rightly rejected the document for its registration, but he has only returned the document with an endorsement in the form of office objection for its compliance. Once the said objection is complied with, the Sub-Registrar would proceed in registering the document. Thus it is not a case where the sub-registrar has out-rightly rejected the document from its registration. 13. Further, it is also not the case of the decree holder/petitioner that PTCL Act is not applicable in the instant case or that he is not required to produce a permission letter or no objection letter issued by the competent authority under the PTCL Act. For that matter reference to Section 6 of the PTCL Act can be made, which reads as below: 6. Prohibition of registration of transfer of granted lands.--- Notwithstanding anything in the Registration Act, 1908 on or after the commencement of this Act, no registering officer shall accept for registration any document relating to the transfer of, or to the creation of any interest in, any granted land included in a list of granted lands furnished to the registering officer except where such transfer is in accordance with this Act or the terms of the grant of such land or the law providing for such grant.
A reading of the above Section go to show that the very section mentions that registering officer shall not, accept for registration of any document relating to the transfer of, or to the creation of any interest in, any granted land included in a list of granted lands furnished to the registering officer except where such transfer is in accordance with the PTCL Act or the terms of the grant of said land or the law providing for such grant. Further, it is not the case of the decree holder that provisions of PTCL Act was not applicable to the case on hand or that such a transfer was in accordance with PTCL Act or the terms of the grant of such land was providing for such transfer. Further, the scope of the present petition is also not challenging the Act of the Sub-Registrar in a process known to law particularly his act of requesting for a permission letter or a noobjection letter issued by the competent authority under PTCL Act. Therefore, suffice it to say that the Executing Court, though has not given the detailed reasons for its finding, however, has arrived at a finding for closure of execution petition for the time being reserving liberty to the decree holder to open it when cause of action calls for and also observing that the decree older had efficacious remedy before the Competent Forum for the alleged return of the document by the Sub- Registrar. I do not find any irregularity, perversity in the said order of the Executing Court warranting any interference at the hands of this Court. 14. Accordingly, I proceed to pass the following: ORDER: Civil Revision Petition is dismissed.