ALIKUTTY Vs. VEERUMMAKUTY UMMA

JUDGEMENT

(1.) The appellant in these two appeals obtained orders under the Indian Registration Act from the District Registrar, for the compulsory registration of two documents. In passing the orders, the District Registrar also awarded costs to the appellant to be realised from the respondents in the two appeals. The appellant then executed the orders for costs in the court of the Munsiff and realised the amounts. The respondents afterwards succeeded in getting the orders cancelled by way of fresh suit. This became final on appeal. The respondents then applied to the Munsiff for restitution of the amounts realised from them pursuant to the orders of the District Registrar. The Munsiff dismissed the applications, but in appeals the Subordinate Judge allowed them. The appellant has therefore preferred these two appeals. The respondents did not enter appearance.

(2.) The first point for consideration is whether the applications for restitution were maintainable under S.144 of the CPC. The question depends on whether the Munsiff's Court can be held to be the court of first instance within the meaning of that section. S.75 sub-s.(4) of the Indian Registration Act, 1908, enacts that "the Registrar may, for the purpose of any enquiry under S.74, summon ... as if he were a Civil Court, and he may also direct by whom the whole or any part of the costs of any such enquiry shall be paid, and such costs shall be recoverable as if they had been awarded in a suit under the Code of Civil Procedure, 1908". Although the Section does not in terms provide that the Registrar may send the order for costs to the Munsiff for execution, there is no provision in the Indian Registration Act prescribing the procedure for the Registrar himself realising the amount. S.75 (4) has ordained, that the realisation has to be in accordance with the provisions of the Civil Procedure Code, that is, of O.21 of the Civil Procedure Code. The Registrar being no court, it seems to follow from S.75 sub-s.(4), that the amount is to be recovered by way of executing under the provisions of O.21 CPC., the decree or order such as it is, as passed in a suit. This was the view taken by the Madras High Court in Bommi Reddi Muni Reddi v. Perur Subbiah, ( AIR 1937 Mad. 585 ).

(3.) From this it would follow, that the Court which executes the decree or order is the Court of first instance within the meaning of S.144 CPC. In an analogous case decided under the Cochin Buildings (Lease and Rent Control) Proclamation IV of 1122, in which provision is made for the execution of an order passed by the Rent Controller by the District Munsiff having jurisdiction, Kutty Mhamathu v. Saithu Moitheen Sahib (AIR 1953 TC 318) the Travancore Cochin High Court has held, that the Munsiff's Court must be deemed to be the court of first instance, although the executable order was passed by the Rent Controller. For these reasons, the applications of the respondents for restitution are maintainable under S.141. The applicability of S.151 of the Civil Procedure Code does not arise for consideration. C. M. Appeals 160 and 161 of 1961 are both dismissed, but without costs as the respondents have not entered appearance.