JOSEPH Vs. JESAYYA

JUDGEMENT

(1.) BASING his argument on the difference between Art. 166 of the Travancore Limitation Act (VI of 1100) and the corresponding Article of the Indian Act viz. Art. 182, Shri T. R. Subramonia Iyer, learned counsel for the appellant, contended that the period of six years would be available only in a case where the decree was registered under the Indian Registration Act. The relevant portions of the two Articles are as follows: Art. 166 Description of application Period of limitation For the execution of a decree or order of Three years; any Civil Court not provided for by S. 41 or, where a certified copy of of the Code of Civil Procedure. the decree or order that been registered, or a Memorandum of the decree or order relating to immoveable property is entered or filed as required by S. 15 of Regulation II of 1087, six years. Art. 182. For the execution of a decree or order of any three years; Civil Court not provided for by Art. 183 or by or, where a certified copy of S. 48 of the Code of Civil Procedure, 1908. the decree or order has been registered, six years. The Limitation Act of Travancore thus allowed a period of six years from the date of the decree or order where a memorandum of a decree or order relating to immoveable property was entered or filed as required by s. 15 of the Regulation Act of Travancore (II of 1087 ). S. 15 of the Act provided: "when any Civil Court shall, by a decree or order, create, declare, transfer, limit or extinguish any right, title or interest of any person to or in any immoveable property situate in any part of Travancore, such Court shall cause a memorandum of the said decree or order to be sent to the Sub-Registrar or to every Sub-Registrar within whose sub district the whole or any portion of the property is situate and such memorandum shall, so far as may be practicable, describe the property in the manner required by S. 14 and the memorandum so received shall be filed in Book 1". This corresponds to the provision in Ss. 45 and 42 respectively of the Indian Registration Acts XVI of 1864 and XX of 1866. For the correct appreciation of the question raised in appeal it is useful to refer briefly to the provisions in the Indian Registration Act for the registration of decrees and orders. By S. 16 of the Act of 1864 "any decree or order of court or private award of arbitration" was made optionally registerable but in S. 18 of the Act of 1866 the list of documents of which registration was optional did not include "decrees or orders of Courts". In S. 18 of the Act of 1871 "certified copies of decrees and orders of Courts" were amongst documents optionally registrable. When he come to Act III of 1877 is seen that "decrees and orders of Courts and awards" are exempted from registration by S. 17 (1 ). But there was a provision in Clause. (f) of S. 18 for the registration of "all other documents not required by S. 17 to be registered". Thus decrees and orders continued to be in the category of documents of which registration was optional. Under S. 32 of the Act of 1877 a person claiming under a decree or order had to present only a copy of the decree or order for registration. The provisions of Ss. 17,18 and 32 were re-enacted without any change in the present Act (XVI of 1908) but an important change was made in S. 17 Clause. 2 (6) by S. 10 of the Transfer of Property (Amendment) Supplementary Act, 1929. This clause as amended provides that nothing in Clause. (b) and (c) of sub-s. 1 applies to any decree or order except a decree or order expressed to be made on a compromise and comprising immoveable property other than that which is the subject-matter of the suit or proceedings. Thus the position under the Indian Registration Act is that decrees and orders other than those specified in S. 17, Clause. 2 (6) are only optionally registrable.

(2.) THE controversy has arisen in this case on account of the fact that the Indian Limitation Act and the Indian Registration Act differ from the corresponding Acts in Travancore as regards registration of decrees. S. 15 of the Travancore Act provided for sending a memorandum of the decree or order affecting immoveable property to the Sub-Registrar within whose sub-district the whole or any portion of the property was situate. It further provided that such memorandum should be filed in Book 1, that is, register of non-testamentary documents relating to immoveable property. In view of this, a provision was made in Art. 166 of the Travancore Limitation Act fixing a period of six years for applying for execution of a decree which was either registered or of which the memorandum was filed under S. 15. As there is no provision in the Indian Act corresponding to S. 15 of the Travancore Registration Act, it is argued that the decree has to be treated as an unregistered one and that the application for execution presented more than three years after the date of the decree is barred by limitation. We are unable to accept this argument. S. 15 of the Travancore Registration Act made provision for getting certain decrees registered and that in a cheaper and more expeditious way than other documents. A period of six years was allowed under the Travancore Limitation Act or applying for execution of such decrees. THE appellant did not dispute that the decree in this case was filed under S. 15 of the Travancore Registration Act and that a period of six years was available to the decree-holder for applying for execution. THE question how far the Indian Limitation Act and the Indian registration Act have altered the position has to be examined in the light of the Statute by which these Acts were made applicable to this State.

(3.) IN the result, we confirm the order of the court below repelling the plea of limitation. The court below will enquire into the judgment-debtor's objection regarding the payment alleged to have been made to the attaching decree-holder and referred to in the petition dated 18. 3. 1125. Subject to this direction, the appeal is dismissed with costs. Dismissed.