PICHAI PILLAI UDAYAN Vs. SUBBARAYA PILLAI (DIED)

JUDGEMENT

(1.) This is an appeal filed by the plaintiff, who had instituted a suit for sale of certain properties on the allegation that a mortgage or charge was created in his favour, under either an oral award or in consequence of certain statement and proceedings in a Criminal Court, when defendant 1 had filed a complaint against him under Section 145 of the Criminal Procedure Code. The suit was decreed by the District Munsiff of Ariyalur on the basis of the alleged oral award. The decision was affirmed on appeal by the Subordinate Judge of Trichinopoly, although not on the ground which had found favour with the District Munsiff, but on the basis of statements made by the plaintiff and defendant 1 before the Magistrate to whom the complaint under Section 145, Criminal Procedure Code, was sent for an inquiry. On an appeal to the High Court our learned brother King, J., took the view that the statements relied m by the plaintiff did not merely create a charge but a mortgage, which could not however be given effect to as they were inadmissible in evidence for want of registration. The appeal was therefore accepted by him and the suit dismissed. The plaintiff now appeals under the Letters Patent and the only question which has to be decided is whether a mortgage had come into existence which was legally enforcible. In view of the assumption that we have made as held by King, J., that a mortgage as distinguished from a charge was created by the statements of parties made on 30 January, 1923 (Ex. D) it would not be seriously disputed that if they were the only basis of this action, there would be no force in this appeal. The Subordinate Judge's order although well considered, was rightly set aside on this ground. The real question however relates to the effect of the order of the Sub-Divisional Magistrate which he had passed in consequence of the compromise arrived at between the parties and contained in their statements.

(2.) Before we advert to that order in any detail, it might be stated that the order was passed on 2nd February, 1923 (Ex. G-1) before Section 17(2)(vi) of the Registration Act was amended in 1929 and the law as it stood before the amendment would have to be applied to the facts of this case. This position was admitted by the respondent's counsel although so far as this case is concerned the position would not have been different, if the orders were passed by the Magistrate after 1929 as the order made by him comprised no other property than that which was the subject-matter of the proceedings before him.

(3.) Coming now to the order passed on 2nd February, 1923, it appears, as already stated, that this was passed by the Sub-Divisional Magistrate after he had received the statements, made by the parties (Ex. G) and when he was satisfied that there was no further fear of the breach of peace. The order has been expressed in one compressed word "lodged"; but the word is pregnant and must have been meant to convey a good deal more than a mere order of dismissal. The word "lodge" when used in regard to Courts is usually meant to convey "a deposit of a formal document of information or complaint, etc." (See Oxford English Dictionary.) Applying this meaning to the facts of this case, it appears to us that it was meant to incorporate the statements made by the parties and to convey that in view of those statements it was unnecessary to proceed any further. We are strengthened in this interpretation by the Act that without referring to the statements the order is incomplete and indeed incomprehensible.