NEMICHAND Vs. GANESHMAL

JUDGEMENT

(1.) THE facts giving rise to this second appeal by the plaintiff lie within a narrow compass:

(2.) DEFENDANTS Nos. 1 and 2 Ganeshmal and Sardarmal executed a mortgage deed dated 1 -3 -54 for a sum of Rs. 8000/ -in favour of the plaintiff Nemichand. Shri M.K. Rathi, an Advocate of Aimer presented the mortgage deed on behalf of the mortgagee plaintiff Nemichand before the Sub -Registrar, Ajmer on 1 -7 -1954 which was the last date for presentation of the deed, the limitation prescribed for the purpose being four months from the date of execution. The Sub -Registrar returned the document the same day with the following endorsement: - - 'Mr. M.K. Rathi counsel for Nemichand present. The above presentation along with the document does not appear to be valid, and further the time prescribed for registration expires to -day and there is no time left to enforce the appearance of the opposite party. Therefore, in view of Section 4 of the Indian Registration Act no further action can be taken. The document is therefore returned.' What exactly happened thereafter is not known but there is a further endorsement of the Sub -Registrar dated 9 -10 -1954 which runs thus; - - 'The document received from the Registrar of Assurances, Aimer under his No. 3416 - XXII -D -21 dated 15 -7 -1954 with the direction to register it on payment of 10 times the amount of proper registration fee as fine. Mr. M.K. Rathi Advocate appeared on 22 -7 -1954 and put in an application under Section 36 of the Indian Registration Act.' There is yet another endorsement of the Sub -Registrar of the same date to the effect that Shri Badge! filed power for both the opposite parties requesting for time to file objections but did not undertake to produce the opposite parties. It is further mentioned in this endorsement that notice was issued to the opposite party No. 1, namely, Ganeshmal, and it was not received after service but Shri Badgel stated that substituted service had been effected on Shri Ganeshmal. The opposite party No. 2, namely Sardarmal was reported to be absent in spite of service. Consequently, the Sub -Registrar observed that the absence of boththe executants in spite of service amounted to denial of execution of the document and therefore he refused to register it. Dissatisfied with the latter order of the Sub -Registrar of 9 -10 -1954 the plaintiff moved an application under Section 73 of the Indian Registration Act of 1908 (which for shortness will hereinafter be called 'the Act') before the Registrar who also by his order dated 22 -5 -58 refused to register the document on the ground that it had not been properly presented before the Sub -Registrar. Ajmer. Incidentally he also observed that the document had not been proved to be duly executed. The plaintiff thereupon filed the present suit under Section 77 of the Act on 30 -6 -1958 in the Court of Civil Judge, Ajmer praying that a direction may be issued for registration of the mortgage deed. The suit was resisted by the defendants Nps, 1 and 2 who while admitting their signatures on the document pleaded lack of receipt of consideration. They also pleaded that there was no valid presentation of the document and consequently the suit was liable to be dismissed. They raised a further objection to the maintainability of the suit on the ground that the order of the Sub -Registrar dated 1 -7 -1954 was appealable and no appeal having been filed from that order the present suit did not lie.

(3.) LEARNED counsel for the appellant has urged that the lower courts had passed an order dt. 15 -7 -1954 directing the Sub -Registrar to register the was no valid presentation of the mortgage deed. It is contended that the Registrar had passed an order dated 15 -7 -1954 directing the Sub -Registrar to register the document on payment of ten times the amount of the proper registration fee as fine. This order of the Registrar according to the learned counsel was passed under Section 25 of the Act and the validity of the same could not be called into question in a suit under Section 77 of the Act. In nut shell his contention is, that it must be presumed, in the facts and circumstances of the case, that the document had been validly presented before the Registrar and by virtue of the powers conferred upon him by Section 25 of the Act he directed the registration of the document even after the expiration of the prescribed period of four months from the date of execution on payment of fine. He has further argued that the Registrar had no jurisdiction thereafter to refuseto register the document by his order dated 22 -5 -1958.