SAIT GENAMAL Vs. PACHIGOLLA CHINA RAMASWAMY

JUDGEMENT

(1.) THIS second appeal raises a difficult though interesting question of law, namely, whether an instrument of mortgage executed by a court in pursuance of a decree for specific performance needs attestation by two witnesses as required by Section 59 of the Transfer of Property Act.2. The facts that contributed to this litigation and which have given rise to this question may be briefly narrated. The 2nd respondent had borrowed a sum of Rs. 900/ from the appellant and executed a promissory note for that sum on 3-8-1952 arid, at the same time, agreed to create a mortgage over the suit property for that debt in favour of the plaintiff if the promissory note debt was not discharged within three months of the date of the promissory note. He neither made the repayment nor executed the mortgage as undertaken by him. Therefore, the plaintiff was obliged to lay an action for specific performance of the agreement to execute a mortgage -- O. S. No. 23 of 1953 in the Court of the District Munsif, Amalapuram. That suit was decreed on 7-3-1953. and. in execution of that decree, the District Munsif had executed a mortgage deed in favour of the plaintiff acting under Order XXI Rule 34 C. P. C. (Ex. A-1).3. Meanwhile, the 1st respondent sued the 2nd respondent in Small Cause Suit No. 173 of 1953 on the file of the Court of the Subordinate Judge, Amalapuram, for recovery of the money due to him on a promissory note and had a judgment entered in his favour on 20-10-1952. In execution of that decree, he brought the property covered by that mortgage to sale and purchased one of the items. In the present suit, out of which, this Second Appeal arises, the plaintiff sought to enforce the mortgage in his favour. THIS suit was contested by the first respondent, inter alia, on the contention that Ex. A-1 was not valid as it was not duly attested and hence no effect could be given to it.4. The trial Court decided that the mortgage deed having been executed by the Court, it was not a transaction amounting to transfer of property by act of parties and, therefore, was excepted from the mandatory provisions of Section 59 of the T.P. Act, On appeal, that judgment was reversed by the Subordinate Judge, Amalapuram, who held that the mortgage, even if it was executed by a Court, was hit at by Section 59 of the T.P. Act since it falls within the mischief of Section 2 (d) of the T.P. Act and consequently it was necessarily to be attested by at least two witnesses. The learned Judge was of opinion that the document was invalid in law without attestation, since the seal of the Court appearing on the document was not a substitution for the attestation by two witnesses. Aggrieved by this decision, the plaintiff has brought this Second Appeal.5. The point for determination is whether the documents executed by a Court under Order XXI Rule 34 have to be in conformity with Section 59 of the T.P. Act. As the controversy revolves round the interpretation of some of the statutory provisions embodied in the T.P. Act, and the C.P.C., it is useful to extract them here. "Older XXI Rule 34: 1. Where a decree is for the execution of a document or for the endorsement of a negotiable instrument and the judgment-debtor neglects or refuses to obey the decree, the decree-holder may prepare a draft of the document or endorsement in accordance with the terms of the decree and deliver the same to the Court. 2. The Court shall thereupon cause the draft to be served on the judgment-debtor together with a notice requiring his objections (if any) to be made within such time as the Court fixes in this behalf. 3. Where the judgment-debtor objects to the draft, his objections shall be stated in writing within such time, and the Court shall make such order approving or altering the draft as it thinks fit. 4. The decree-holder shall deliver to the Court a copy of the draft, with such alterations (if any) as the Court may have directed upon the proper stamp-paper if a stamp is required by the law for the time being in force; and the Judge or such Officer as may be appointed in this behalf shall execute the document so delivered. 5. The execution of a document or the endorsement of a negotiable instrument under, this rule may be in the following form, namely: