NABADWIP CHANDRA DAS Vs. LOKE NATH ROY

JUDGEMENT

(1.) These two appeals have arisen out of a suit for foreclosure on a mortgage by way of conditional sale and are from the preliminary and the final decrees passed therein. Defendants 6, 7, 8 and 11 are the appellants. Defendant 1 is the mortgagor. He executed the mortgage on 23 June 1916. On the same day, after being duly signed and attested, the deed was presented for registration and the executant's admission was taken, but the registration was not complete till 27 June 1916, which is the date the certificate of registration bears. Defendant 26, having obtained a decree for money in Money Suit No. 153 of 1915 against defendant 1 on 18 May 1916, put it into execution, and on 20 June 1916 obtained an order for attachment in respect of eight out of the properties covered by the mortgage. Two out of these eight properties are concerned in this appeal. On 21 June 1916 the writ of attachment was signed and issued and made over to the peon. As regards the said two properties the prohibitory order was served in the locality on 22 June, 1916, but was not posted in the court-house till the 24th. On 24 February 1917 the attached properties were sold in auction and purchased by defendant 26. After the sale was confirmed and possession was delivered to defendant 26, he sold the said eight proper ties to defendant 29 on 25 May 1919. On 3 January 1921 defendant 29 sold the two properties with which we are concerned to the appellants.

(2.) The first question we have been called upon to determine is what was the effect of the attachment upon the mortgage which defendant 1 made. In the Court below the appellants rested their claim upon the ground that the attachment was prior to the execution of the mortgage. This contention was resisted on behalf of the plaintiffs on the ground that to render an attachment effectual the affixing of the prohibitory order on the court-house is absolutely necessary, and in as much as such affixing was later in date than the execution the mortgage lien was not affected by the attachment. The Court below upheld the plaintiffs contention. It is not disputed now that the view which the Court below has taken is correct; and indeed the correctness of the view can no longer be disputed: see Muthiah Chetty V/s. Palaniappa Chetty AIR 1929 PC 139. But, in this Court, it has been argued on the appellants behalf that in view of Section 59, T.P. Act, no right was created under the deed until it was registered and that in as much as the registration admittedly took place after the attachment had been effectively made the mortgage was, having regard to Section 64, Civil P.C., void against all claims under the attachment. There is very little authority directly bearing on the question that has to be considered; the only decision in which something like the present question was dealt with is the case of Veerakutty Koundan V/s. Ramasami Asari (1916) 32 IC 431. In that case it was held that where between the dates of the execution and of the registration of a mortgage deed another unregistered mortgage bond is sued upon and the mortgaged properties are attached, that mortgage does not acquire priority over the registered mortgage either by reason of the decree thereon or by an attachment, order obtained in the suit. The effect of an attachment however does not appear to have been specifically considered in that case and so the decision is not of much assistance.

(3.) A number of decisions have been relied upon by the appellants to fix the point of time at which a document can be said to be registered: Mt. Rohimoonnissa V/s. Abdoollah Khan (1874) 22 WR 319, Hardei V/s. Ram Lal (1889) 11 All 819, Veerappa Chetty V/s. Kadiresan Chetty (1913) 20 IC 385 and Mohammed Ewaz V/s. Birj Lall (1879) 1 All 465. It is unnecessary to discuss these because it can never be and indeed has not been contended on behalf of the respondent that the mortgage deed in the present case was a registered document at the date when the attachment was effected. It has then been contended that in the case of a document, of which registration is compulsory, title does not pass until registration has been effected: Paperaddi V/s. Narasireddi (1893) 1C Mad 464, Sheonarain V/s. Darbari (1898) 2CWN 207 and Tilakdari Singh V/s. Gour Narain AIR 1921 Pat 150. But Section 47 of that Act says that a document which is registered operates from the time of its execution and not from the time of its registration. The real question to be considered therefore is whether this operation by virtue of S, 47 of the Act in respect of a deed duly executed but not registered, is in any way affected by an attachment effected in the meantime, having regard to the provision contained in Section 64, Civil P.C.