Authored By : Banerjee, Hamilton Wincup Gordon

Banerjee and Hamilton Wincup Gordon, JJ.

1. This appeal arises out of certain execution proceedings.The appellant, as the assignee of the assignee of a decree on a mortgage bond,applied for execution of that decree. The successive assignors admitted theassignments, but the judgment-debtor objected to the execution proceedings uponvarious grounds, of which it is necessary to notice only one, namely, that theapplicant bad no right to execute the decree by reason of the assignment infavour of his vendor from the original decree-holder being by an unregistereddocument, which is inadmissible under Section 49 of the Registration Act.

2. The first Court overruled the other objections of thejudgment-debtor, and with reference to the objection last mentioned, it heldthat, though by reason of the assignment in favour of the applicants vendornot being by a registered document, the applicant was not entitled to enforce thedecree as a mortgage decree, there was nothing to prevent his enforcing it as asimple money decree, and that order has been affirmed on appeal.

3. In second appeal it is contended on behalf of thejudgment-debtor that this order is wrong, and that the applicant had acquiredno right to enforce the decree when the intermediate assignment, namely, thatin favour of his vendor, was by an unregistered document, and thereforeinadmissible in evidence; and in support of this contention the case of Gopal Narayanv. Trimbak Sadashiv I.L.R. 1 Bom. 267 [LQ/BomHC/1876/34] is relied upon.

4. That case no doubt supports the contention raised onbehalf of the appellant, but with all respect for the learned Judges whodecided it, we must say we are unable to assent to their decision. Section 17,Clause (b) of the Registration Act, which is the only provision of the Act thatcan possibly apply to this case, enacts that non-testamentary instruments otherthan instruments of gift of Immovable property [which are provided for byClause (a)] which purport or operate to create, declare, assign, limit orextinguish, whether in present or in future, any right, title or interest,whether vested or contingent, of the value of one hundred rupees and upwards toor in Immovable property, shall be registered; and in construing this section aFull Bench of the Allahabad High Court in the case of Jiwan Ali Beg v. Basa MalI.L.R. 9 All. 108 held that in order that a document may come within Clause (b)of Section 17 of the Registration Act it must in itself purport or operate tocreate, &c. Sir JOHN EDGE, in his judgment which was concurred in by themajority of the Full Bench, observes: "Now what construction should beplaced on these prohibitory and highly penal sections, which impose such seriousdisqualification for non-observance of registration The only proper answer tomy mind is that we must see that the strictest construction be placed on them,and that the document objected to comes within the four corners of theseprovisions. I have said that these endorsements are not, in my opinion, withinthe terms of Section 17, Clauses (b) and (c), and if I might deal with thequestion as to what the instrument should contain in order to be within thesection, I should say that in my judgment an instrument to come withinSub-section (b) must in itself purport or operate to create, declare,&c."

5. Now let us see what the nature of the document objectedto in the present case is. It is a deed of assignment, not of any propertycovered by the decree, but of the decree itself; and the decree, though it be adecree upon a mortgage bond, can in no sense be regarded as Immovable property.It clearly does not come within the definition of Immovable property given inthe Registration Act, and we must, in applying the provisions of theRegistration Act, be careful to distinguish between a decree and the propertycovered by it. Then, does the assignment in itself purport or operate to createany right, title or interest in any Immovable property Clearly not. It may bethe indirect means to the creation of such an interest, if the Court, under theprovisions of Section 232 of the Code of Civil Procedure, thinks it fit toallow the application of the assignee claiming under this document. But Clause(b), whilst it is made to be very comprehensive in certain respects, does notcontain any words like these "which directly or indirectly purport tocreate," &c. The case we have cited from the Indian Law Reports,Allahabad series, is authority for construing the words "which purport oroperate to create" in the sense "which in themselves purport oroperate to create." The letter of the Registration law does not thereforesupport the contention raised on behalf of the appellant.

6. Nor do we think the spirit of the Registration law in anyway favours that contention. We do not think that the Registration Act was everintended to apply to a document like an assignment of a decree, when the Codeof Civil Procedure itself (see Section 208 of Act VIII of 1859 and Section 232of the present Code) makes ample provision for preventing, in cases like thepresent, fraud or falsehood, such as the law relating to registration ofdocuments is meant to guard against. Section 232 of the Code expressly providesthat "where a decree has been transferred by assignment, notice in writingof such application shall be given to the transferor and the judgment-debtor,and the decree shall not be executed until the Court has heard theirobjections, if any."

7. For all these reasons we are of opinion that the documentobjected to was not inadmissible in evidence for want of registration. Thatbeing so, the appeal fails, and must be dismissed, but without costs, as no oneappears for the respondent.

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Gous vs. Khawas AliKhan (10.01.1896 - CALHC)