- (1.)This is an application to review a decree of this Court in Appeal No. 2 of 1935 from Order. It was an appeal from an order of the Joint First Class Subordinate Judge of Ahmedabad directing an award to be filed and made a decree of Court. Several points were argued in the appeal, the principal one being whether the arbitrator was given authority to deal with the properties moveable and immoveable which were the subject of the award. It was not brought to the notice of the Court however that the award has not been registered, and we can only suppose that the learned Counsel engaged in the appeal had not realised the significance of the fact. As the law now stands, an award comes under Section 17(1) (b) of the Indian Registration Act, and when it purports or operates to create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees and upwards to or in immoveable property, it is compulsorily registrable. Awards were formerly excepted from the operation of Section 17 under Clause (2)(vi) of the section. But by an amending Act passed in 1929 awards were deleted from the excepting clause. It is provided in Section 49 of the Act that no document required by Section 17 to be registered shall (a) affect any immoveable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.
(2.)The learned advocate who appears for the applicants, who were defendants Nos. 1 to 3 in the trial Court, contends that the immoveable property dealt with by the award was of greater value than Rs. 100, that the award therefore is compulsorily registrable, that as it has not been registered, the Court was not competent to file it and pass a decree upon it, and that therefore this Court should review its decree passed in appeal and set aside that decree on the ground that there is an error apparent on the face of the record.
(3.)It is an extraordinary thing that the point apparently did not occur to the learned Counsel engaged in the appeal, or indeed to pleaders or parties at any stage of the proceedings hitherto. If the attention of the Court had been drawn to the fact that the award was not registered, a great deal of the time of the Court and also much expense to the parties would have been saved. But now that the point has been brought forward, there is, as far as I can set;, no answer to it.
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