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2017 Supreme(Mad) 2029
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.V. MURALIDARAN, J.
Shanmugam - Petitioner
Vs.
Rajeswari & Ors. - Respondents
CRP (NPD) No. 2443 of 2013 and M.P.No.1 of 2013
Decided On : 12-09-2017
Advocate Appeared:
For the Petitioner: Mr. Navin Kumar Murthi, Mr. R. Santhanam
For the Respondent: Mr. D. Selvaraju
Headnote:
Civil Procedure Code,1908 - Section 47 - Registration Act, 1908 - Section 17, Section 17(1)(b) and 17(2)(v) and (vi) - Present Civil Revision Petition has been filed challenging order passed in E.A.No.180 in E.P.No.150 in O.S.No.100 , passed by Principal District Munsif, whereby lower Court has allowed Petition filed by respondents herein and consequently, set aside Sale Deed executed in favour of Revision Petitioner - Facts leading to filing of instant Revision Petition dates back to O.S.No.100 whereby plaintiff in suit has assigned decree in favour of Revision Petitioner and on strength of said decree, Petitioner has filed E.P.No.40 for execution of Sale deed - Filing of said E.A. was in the name of one and 3rd and 4th respondents in instant Revision Petition - There is no whisper as to what happened to said E.A.No.289 but it has not been stated across bar that said E.A. was dismissed for non-prosecution – Held, Though Honble Andhra Pradesh High Court has held in above mentioned case that assignment deed has to be compulsorily registered, there has not been elaborate discussions to find out the real scope of Section 17 - On the contrary, Honble Allahabad High Court in other cases has gone into main issue regarding the scope of Section 17 and has given a clear finding that a deed of assignment of a decree does not per se confer a right/interest in an immovable property since decree cannot be described as an immovable property - Court of view that judgment of Honble High Court lays down right law and applies factually to present issue and with due respect, court unable to concur with view adopted by Honble Andhra Pradesh High Court - Therefore, court hold that a deed of assignment of a decree is not compulsorily registrable under the Registration Act - This Civil Revision Petition is allowed - Judgment and decree passed in E.A.No.180 in E.P.No.150, in O.S.No.100, on file of Principal District Munsif Court, is hereby set aside - Consequently, connected miscellaneous petition is closed.
The court ultimately adopted the position that an assignment of a decree does not require compulsory registration under Section 17 of the Registration Act, as a decree is not itself immovable property and does not directly create, declare, assign, limit, or extinguish any right, title, or interest therein (falling within the exceptions of Section 17(2)(v) and (vi)). (!) (!) (!) [21001248170015][21001248170016]
1. The present Civil Revision Petition has been filed challenging the order passed in E.A.No.180 of 2009 in E.P.No.150 of 2004 in O.S.No.100 of 1989, dated 08.04.2010 passed by the Principal District Munsif, Erode, whereby the lower Court has allowed the Petition filed by the respondents herein and consequently, set aside the Sale Deed executed in favour of the Revision Petitioner.
2. The facts leading to filing of the instant Revision Petition dates back to O.S.No.100 of 1989 whereby the plaintiff in the above suit has assigned the decree in favour of the Revision Petitioner and on strength of the said decree, the Petitioner has filed E.P.No.40 of 1997 for execution of the Sale deed. Accordingly, the said Execution Petition was allowed and to set aside the order of execution passed in E.P.No.40 of 1997, E.A.No.289 of 1998 was preferred by the legal heirs of the original owner.
3. The filing of the said E.A. was in the name of one Mr. Anna Durai and Mr. Shankar, the 3rd and 4th respondents in the instant Revision Petition. There is no whisper as to what happened to the said E.A.No.289 of 1998 but it has not been stated across the bar that the said E.A. was dismissed for non-prosecution. Continuing the battle, the 3rd and 4th respondents in the instant Revision Petition also included their sisters Rajeswari and Vijayalakshmi who are the 1st and 2nd respondents herein and filed a fresh E.A.No.180 of 2009 under Section 47 of the C.P.C. seeking to set aside the Execution of the Sale deed dated 13.08.2008 in favour of the revision petitioner and consequently, prayed for dismissal of the Execution Petition itself.
4. The main allegation raised by the petitioners in E.A.No.180 of 2009 is that the assignment of the decree made in favour of the revision petitioner is not registered under the Registration Act and since the same being mandatory, the assignment made in favour of the petitioner itself is not valid and is not executable under law. It was further claimed that the assignment of decree is written in insufficient stamp under the Stamp Act and the assignment of the decree is also undervalued and hence, it is not a valid document. It has also been claimed that in a single Execution Petition, the relief of execution and delivery of possession cannot be claimed and accordingly, disputed the claim of the Revision Petitioner.
5. In the counter affidavit filed by the Revision Petitioner before the lower Court, it has been stated that the present attempt by the respondents herein is nothing but a collusive proceeding and has been filed only with a malicious motive. It has also been contended that the respondents have protracted the proceedings by not appearing before the Court and also evading the notices and have deliberately allowed the matter to be decided ex parte. It has also been claimed that the previous E.A. filed by the respondent herein way back in 1998 was also dismissed and the respondents here attempting to create a second round of litigation and are only trying to make a stale claim. It has also been contended that since the sale deed itself has now been registered, the claim made by the respondents herein cannot be sustained.
6. The lower Court while considering the rival submissions, though rejecting the contentions of the then Petitioner that the assignment deed was insufficiently stamped and that more than a single relief could not be asked in a single Execution Petition, has relied on the judgment of the Andhra Pradesh High Court in K. Bhaskaran and another v. Mohammed Moulana (died) and others reported in AIR 2005 AP 524 and held that non-registration of the assignment of the decree is fatal and has allowed the Application preferred by the respondents 1 to 4 herein and set aside the Sale deed executed in favour of the revision petitioner.
7. When the present revision petition came up for admission, this Court has granted an order of interim stay and has also confirmed that the order under challenge in the present R
