JOSEPH Vs. JESAYYA
LAWS(KER)-1955-2-7
HIGH COURT OF KERALA
Decided on February 09,1955

JOSEPH Appellant
VERSUS
JESAYYA Respondents

JUDGEMENT

- (1.) BASING his argument on the difference between Art. 166 of the Travancore Limitation Act (VI of 1100) and the corresponding Article of the Indian Act viz. Art. 182, Shri T. R. Subramonia Iyer, learned counsel for the appellant, contended that the period of six years would be available only in a case where the decree was registered under the Indian Registration Act. The relevant portions of the two Articles are as follows: Art. 166 Description of application Period of limitation For the execution of a decree or order of Three years; any Civil Court not provided for by S. 41 or, where a certified copy of of the Code of Civil Procedure. the decree or order that been registered, or a Memorandum of the decree or order relating to immoveable property is entered or filed as required by S. 15 of Regulation II of 1087, six years. Art. 182. For the execution of a decree or order of any three years; Civil Court not provided for by Art. 183 or by or, where a certified copy of S. 48 of the Code of Civil Procedure, 1908. the decree or order has been registered, six years. The Limitation Act of Travancore thus allowed a period of six years from the date of the decree or order where a memorandum of a decree or order relating to immoveable property was entered or filed as required by s. 15 of the Regulation Act of Travancore (II of 1087 ). S. 15 of the Act provided: "when any Civil Court shall, by a decree or order, create, declare, transfer, limit or extinguish any right, title or interest of any person to or in any immoveable property situate in any part of Travancore, such Court shall cause a memorandum of the said decree or order to be sent to the Sub-Registrar or to every Sub-Registrar within whose sub district the whole or any portion of the property is situate and such memorandum shall, so far as may be practicable, describe the property in the manner required by S. 14 and the memorandum so received shall be filed in Book 1". This corresponds to the provision in Ss. 45 and 42 respectively of the Indian Registration Acts XVI of 1864 and XX of 1866. For the correct appreciation of the question raised in appeal it is useful to refer briefly to the provisions in the Indian Registration Act for the registration of decrees and orders. By S. 16 of the Act of 1864 "any decree or order of court or private award of arbitration" was made optionally registerable but in S. 18 of the Act of 1866 the list of documents of which registration was optional did not include "decrees or orders of Courts". In S. 18 of the Act of 1871 "certified copies of decrees and orders of Courts" were amongst documents optionally registrable. When he come to Act III of 1877 is seen that "decrees and orders of Courts and awards" are exempted from registration by S. 17 (1 ). But there was a provision in Clause. (f) of S. 18 for the registration of "all other documents not required by S. 17 to be registered". Thus decrees and orders continued to be in the category of documents of which registration was optional. Under S. 32 of the Act of 1877 a person claiming under a decree or order had to present only a copy of the decree or order for registration. The provisions of Ss. 17,18 and 32 were re-enacted without any change in the present Act (XVI of 1908) but an important change was made in S. 17 Clause. 2 (6) by S. 10 of the Transfer of Property (Amendment) Supplementary Act, 1929. This clause as amended provides that nothing in Clause. (b) and (c) of sub-s. 1 applies to any decree or order except a decree or order expressed to be made on a compromise and comprising immoveable property other than that which is the subject-matter of the suit or proceedings. Thus the position under the Indian Registration Act is that decrees and orders other than those specified in S. 17, Clause. 2 (6) are only optionally registrable.
(2.) THE controversy has arisen in this case on account of the fact that the Indian Limitation Act and the Indian Registration Act differ from the corresponding Acts in Travancore as regards registration of decrees. S. 15 of the Travancore Act provided for sending a memorandum of the decree or order affecting immoveable property to the Sub-Registrar within whose sub-district the whole or any portion of the property was situate. It further provided that such memorandum should be filed in Book 1, that is, register of non-testamentary documents relating to immoveable property. In view of this, a provision was made in Art. 166 of the Travancore Limitation Act fixing a period of six years for applying for execution of a decree which was either registered or of which the memorandum was filed under S. 15. As there is no provision in the Indian Act corresponding to S. 15 of the Travancore Registration Act, it is argued that the decree has to be treated as an unregistered one and that the application for execution presented more than three years after the date of the decree is barred by limitation. We are unable to accept this argument. S. 15 of the Travancore Registration Act made provision for getting certain decrees registered and that in a cheaper and more expeditious way than other documents. A period of six years was allowed under the Travancore Limitation Act or applying for execution of such decrees. THE appellant did not dispute that the decree in this case was filed under S. 15 of the Travancore Registration Act and that a period of six years was available to the decree-holder for applying for execution. THE question how far the Indian Limitation Act and the Indian registration Act have altered the position has to be examined in the light of the Statute by which these Acts were made applicable to this State. The Part B States "laws" Act III of 1951 made the Indian Limitation Act and the Indian Registration Act applicable to this State and repealed the corresponding State Acts. S. 6 of the Act provides: "if immediately before the appointed day, there is in force in any Part B State any law corresponding to any of the Acts or Ordinances now extended to that State, that law shall, save as otherwise expressly provided in the Act, stand repealed: Provided that the repeal shall not affect: (a) the previous operation of any law so repealed or anything duly done or suffered thereunder, or (b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed, or (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed, or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed: Provided further that, subject to the preceding proviso, anything done or any action taken (including any appointment or delegation made, notification, order, instruction or direction issued, rule, regulation, form, bye-law or scheme framed, certificate obtained, patent, permit or licence granted or registration effected under any such law shall be deemed to have been done or taken under the corresponding provision of the Act or Ordinance as now extended to that State, and shall continue to be in force accordingly, unless and until superseded by anything done or any action taken under the said act or Ordinance". S. 6 of the General Clauses Act X of 1897 is more or less similar in scope: "where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not - (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed". The decree-holder is entitled to claim a period of six years for execution of the decree under either of these provisions. The decree was a registered one under the Registration Act of Travancore and the registration so effected must be deemed to be one under the repealing Act; the repeal of the State Act cannot take away the rights acquired by the registration of the decree under S. 15. If it were merely a matter covered by the Limitation Act there would have been some force in the argument advanced on behalf of the appellant that the Limitation Act which was in force on the date of the execution application should govern the matter. As the rights obtained under the Travancore Registration Act have been left in-tact we are unable to accept the argument that the execution application should have been filed within three years of the date of the decree. The judgment-debtor had another contention viz. , that certain payments made to the attaching decree-holder which are referred to in a petition filed in the case on 18. 3. 1125 should have been given credit to, before allowing execution. This question was not considered by the court below and the same has to be investigated.
(3.) IN the result, we confirm the order of the court below repelling the plea of limitation. The court below will enquire into the judgment-debtor's objection regarding the payment alleged to have been made to the attaching decree-holder and referred to in the petition dated 18. 3. 1125. Subject to this direction, the appeal is dismissed with costs. Dismissed.;


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