KRISHNAN NAIR Vs. MANI MARIAM

JUDGEMENT

(1.) THE decree-holder in O. S. 527 of 1115 on the file of the Kanjirappally Munsiff's Court is the appellant in this Second Appeal. THE only question raised is whether the execution petition filed by him is barred by limitation as found by both the courts below.

(2.) THE 2nd respondent assigned certain immovable properties to the first, who for a part of the consideration therefor, executed a promissory note in favour of the vendor, the 2nd respondent. THE suit was brought by the plaintiff as indorsee of the promissory note from the payee. In the plaint, the plaintiff claimed recovery of the amounts from the maker primarily and in default, from the indorser. He also claimed to have a charge declared on the properties whose sale occasioned the aforesaid promissory note.

(3.) TO the question by the Court as to how the case is sought to be brought within the ambit of S. 15 of the Travancore Registration act, learned counsel for the appellant stated that the case comes within the term "extinguish any right in any immovable property" in S. 15. We have no hesitation in repelling this contention. Extinguishment, has, and can have, no meaning in the absence of existence. It is only a thing that exists that can be extinguished. In the present case the appellant as already stated, claimed a charge over the property, that is to say, to have a charge created over the property by the decree. That is what the records show. On what basis he claimed this relief does not appear nor is it necessary to discover. Suffice it to say that what was asked for was not the enforcement of an alleged pre-existing charge, but a claim to have a charge created for the first time by the decree. Whether it is the one thing or the other may not really matter because even if the suit be regarded as one to enforce an alleged existing charge, if the court decides that no charge existed, then it an hardly be said that there is extinguishment of any right over immovable property. The decree only amounts to a declaration that the charge whose existence was averred by the plaintiff which is sought to be enforced never in fact existed. In our judgment, the present case does not come within the ambit of the provisions of s. 15 of the Travancore Registration Act. It is only in a case which comes within S. 15 that the question as to whether an entry of a memorandum of the decree by the Sub-Registrar and the further question whether even if there has not been such an entry made, if the omission is on account of a default of the court or of any officer thereof, the party having done all that he should have done in the matter, the entry should be deemed to have been made and limitation for execution calculated under Art. 166, at six years as if the entry has really been made, will arise. Those questions do not arise in the present case in the view that we take.