Non-appearance of an executant before the registering officer, in response to a commission issued under Section 38 of the Registration Act, 1908, amounts to a denial of execution, and the Registrar is required to make an enquiry under Section 74 of the Act before refusing registration.

( 1 ) BY a Deed of lease dated 17th February, 1950, the respondent No. 2, Maharaja Dhiraj Uday Chand Mohatab is stated to have granted a lease in perpetuity to Udaynagar Private Ltd. , the petitioner No. 1 certain lands which comprise inter alia of Premises Nos. 2/3 and 2/4, Judges Court Road. It is stated that one of the conditions of the said covenant of lease was that the petitioner No. 2 would within 10 years invest a sum of not less than Rupees twelve lakhs on the said lands and develop the same. It is not necessary to set out the various other clauses of the said Indenture for the purpose of the present application. Subsequent to the said Deed of lease, the lessor and the lessee, to avoid disputes and differences is stated to have agreed that the petitioner No. 2 would surrender its leasehold interest in respect of land measuring 3 bighas 18 cottahs 2 Chittaks and 27 sq. ft. and being premises Nos. 2/3 and 2/4, Judges' Court Road and the lessor would release and discharge the lessee-company for ever and absolutely from the liability to spend the said sum of Rupees twelve lakhs. Pursuant to the said agreement between the lessor and the lessee and Deed of Release and Surrender is stated to have been executed on the 4th May, 1965, by the respondent No. 2 and the petitioner No. 2. The petitioner No. 1 and the respondent No. 3 being the Managing Director of the lessee-company, executed the Deed on behalf of the petitioner No. 2. On 2nd June, 1965, the said Deed was duly presented for registration under the provisions of the Indian Registration Act, 1908 (hereinafter referred to as the Act) by the petitioner No. 1 before the Registrar of Assurances of Calcutta, being the respondent No. 1. It is stated that the petitioner on diverse occasions called upon the respondents Nos. 2 and 3 to appear before the respondent No. 1 for the purpose of admitting the execution of the said Deed in order that it may be duly registered under the Act. The petitioner made an application before the respondent No. 1 for the issue of a commission to examine the respondents Nos. 2 and 3 at their respective residences. The respondent No. 1 thereafter directed the Sub-registrar of Assurances, Alipore to examine the said respondents on commission at their respective residences. On 10th August, 1965, the said Sub-registrar of Assurances attended the residences of the respondents Nos. 2 and 3 but they could not be examined as they were found to be absent on that date when the Sub-registrar of Assurances paid a visit to their residences. Thereafter the respondent No. 1 made an order under Section 76 (1) of the Act on 29th October, 1965, refusing registration of the said document as in his view the petitioner did not take any action to prove the factum of execution by the respondent Nos. 2 and 3 who were the other executants within the statutory period which expired on 4th September, 1965. Being aggrieved by the said order the petitioner has moved this Court and obtained the rule nisi.

( 2 ) AN affidavit of Tara Prosad Chatterji being the constituted Attorney of respondent No. 3 affirmed on 20th January, 1967 had been filed. A further affidavit of Sri Tara Prosad Chatterji affirmed o 17th February, 1968, in reply to the subsequent affidavit field by the petitioner had also been filed.

( 3 ) AT the time of the hearing the learned Counsel for the petitioner contended that when a commission had been issued for the examination of the respondents Nos. 2 and 3 being the other executants and the respondents Nos. 2 and 3 did not appear on the date when the Sub-registrar of Assurance paid a visit at the residence of the said respondents, this amounted to neglect to attend and admit execution and hence should be treated as a denial of execution. In such a case the Registrar is obliged to make an enquiry under Section 74 of the Act and without such an enquiry the order refusing the registration of the document in the present case is illegal and wi