KRISHNAJI KONDO SAHASRABUDHE Vs. NARAYAN ANANT PHANSALKAR

JUDGEMENT

(1.) THIS is a second appeal from a decree of the Assistant Judge of Satara. The only question involved in this appeal is whether the charge created by a registered compromise decree dated January 15, 1935, between defendant No.1 Narayan and defendant No.2 Dattatraya on certain house property is subject to the prior charge on the same property created by an unregistered decree on an award dated June 28, 1932, between the plaintiff and the said Dattatraya.

(2.) THE dispute has arisen in this way. THE second respondent Dattatraya owed a certain sum of money to the plaintiff Krishnaji and his cousin, and upon a dispute arising as to the extent of the liability of the said Dattatraya it was referred to arbitration and an award decree was passed thereupon on June 28, 1932. By that award decree a charge was created on a house bearing No.208A situated at Karad. This is the clause in that decree relating to the charge: A charge in respect of the whole amount claimed in the suit is created on both the properties (including the house property). THE defendant should not create any charge on the said properties.

(3.) THERE can be no doubt that under Section 17, Sub-section (2), Clause(b), of the Indian Registration Act, 1908, an award, which purports or operates to create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees and upwards, to or in immoveable property, is compulsorily registrable. Although at one time awards were excepted from the operation of Section 17(2) of the Indian Registration Act under Sub-section (2), Clause (vi), of that section, by the amending Act passed in 1929 they were excluded from the excepting clause. That being so, it was held in Chimanlal v. Dahyabhai that it was not competent to a Court to file an award which was compulsorily registrable and had not been registered and make it a decree of the Court in contravention of the provisions of Section 49 of the Indian Registration Act. THERE is nothing in the judgment of that case to support the view that where a decree is passed upon an unregistered award, and it has not been set aside or challenged in a proper proceeding, it is a nullity and of no effect. Here the charge is expressly created by the award decree. The law, as it stands, does not require every decree to be registered. According to the provisions of Section 17, Sub-section (2), Clause (vi), of the Indian Registration Act, a decree passed upon an award is no exception to that rule. If such a decree were based upon an award which is unregistered and therefore inadmissible in evidence, it can be impeached in a proper proceeding, such as an appeal, review or revision. At any rate a stranger to the proceedings cannot challenge its validity or underrate its effect on the ground that the decree was founded upon an award which ought not to have been admitted in evidence [see Arvi Co-operative Credit Society, Limited v. Dhondiram Navalchand (1939) 42 Bom. L.R. 486 and the observations in Gurpadappa v. Karveerappa (1934) 36 Bom. L.R. 523, 524].