BRAMA BHATTA Vs. BKODANDARAMA BHATTA

JUDGEMENT

(1.) The solitary question that arises for decision in this revision petition is whether the security bond tendered by the petitioner and respondents 3 to 7 herein, in O.S. No. 7 of 1957 in the Court of the learned District Judge, Shimoga, in pursuance of the Order of this Court in I. A. No. I, in R.F.A. No. 77 of 1962 on the file of this Court, requires to be registered under Section 17(1) of the Indian Registration Act. The Court below has come to the conclusion that the same requires to be registered. The petitioner has come up in revision against that order. This matter originally came up before our learned brother Hombe Gowda, J., sitting singly. His Lordship referred the matter to a Division Bench as there is sharp cleavage of judicial opinion. The question of law referred to us for decision is not free from difficulty. As mentioned by Hombe Gowda, J. on that question the judicial opinion is sharply divided. Further, unless we are thoroughly convinced that the view taken by the Bombay High Court in Jayappa Lokappa v. Shivangouda Dyamangouda, AIR 1928 Bom 42 is clearly wrong, it would be inappropriate to disturb a well settled position in law and thereby render invalid numerous unregistered security bonds that must have been executed in various Courts in the 'Bombay area' of the Mysore State following the decision of the Bombay High Court referred to above. It is not correct to proceed on the basis that questions of law can be divorced from facts of life and can or should be treated as mere subjects for mental exercise without regard to the consequences that may ensue as a result of the decision rendered.

(2.) Due to divergence of judicial opinion, naturally the practice followed in any particular subordinate Court depended on the interpretation given by the High Court to which it was subordinate. The present Mysore State comprises areas that have come from live different States. These areas before the States Reorganisation in 1956 were subject to the jurisdiction of four different High Courts. If we accept the view that security bonds executed in pursuance of orders under Rule 5 or 6 of Order 41 C. P. C. require to be registered, then those security bonds that have not been registered and which cannot be registered now will have to be held as invalid. But, on the other hand, if it is reasonably possible to hold that those security bonds do not require registration, then our decision will not have any adverse effect on the security bonds executed uptill now. It is true that this approach of ours is essentially a practical approach and however beneficial that approach may be the same cannot be adopted if law on the point is clear and unambiguous. Bearing in mind this background we shall now proceed to pronounce on the point in controversy.

(3.) Undoubtedly, the security bond in dispute falls within the ambit of Section 17(1)(b) of the Registration Act. The question is whether it is exempted from registration in view of Section 17(2)(vi). The petitioner contends that it is and the contesting respondents assert that it is not. Section 17(2)(vi) says that nothing in Clauses (b) and (c) of Sub-section (1) applies to any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovablde property other than that which is the subject-matter of the suit or proceeding. Can a security bond executed in favour of a Court, when accepted by the Court despite the fact that it is not registered be said to be an "Order" within the meaning of that word in Section 17(2)(vi) ? The decisions that have answered that question in the affirmative have taken their inspiration from the decision of the Judicial Committee in Bindesri Naik v. Ganga Saran Sahu, ILR 20 All 171 (PC) wherein it was held that Section 17 of the Registration Act (Act III of 1877) does not apply to proper judicial proceedings whether consisting of pleadings filed by the parties or orders made by the Court. These observations undoubtedly support the contention of the petitioner. Again the Judicial Committee observed in Pranal Annee v. Lakshmi Annee, ILR 22 Mad 508 (PC):