FIRM RAMPRATAP SIRINARAYAN Vs. DARSAN RAM

JUDGEMENT

(1.) This appeal raises a question of priority. The appellant obtained a compromise decree (so it is stated) on 19 February 1932, by which a charge was created on the property which was the subject-matter of a mortgage executed in favour of the respondent in this appeal on 26 April 1932. The compromise of the appellant was registered on 10 June 1933 and in those circumstances the Court below has held that the registration was invalid and as a consequence of that finding has held that the mortgagee of the mortgage of 26 April 1932, has priority over the appellant.

(2.) Mr. K.K. Banerji on behalf of the appellant contends that the registration was a valid registration. His argument depends on a further contention that the decree was not drawn up by the Calcutta High Court on its Original Side until 1 June 1933, which would make the registration in the same month within time under Section 23, Registration Act. If we are to accept that statement although there is no evidence of it before us, that is to say, there is no finding in the Court below on this question of fact, it puts Mr. Banerji's client completely out of Court by reason of Section 47, Registration Act, because we must assume prima facie that the operation of the charge dated from 1 June 1933, the date upon which the decree was drawn up by the Master of the Court as I have stated. That would appear to conclude the matter.

(3.) There was one suggestion during the course of the argument that, even assuming that the compromise was to be taken as having been executed on 19th February 1932, (in which event of course the appellant would have priority), the registration of 10 June 1933, must be valid on the assumption that what ought to have been done was in fact done, and that in any event the irregularity in registering the document would be cured by Section 87, Registration Act. There is a clear authority however, of the Judicial Committee of the Privy Council in Ma Pwa May V/s. Chettyar Firm A.I.R (1926) P.C. 279 that the operation of Section 87 does not extend to those cases in which an application for registration is made out of time.