JUDGMENT :- This second appeal arises out of a suit filed by Ram Gopal and Kishan Chand, appellants Nos. 1 and 2 against Jamuna Prasad, Chanda Devi, Ram Kali, Munni, Mithlesh Kumar, Surendra Kumar, Virendra Kumar and Ramendra Kumar respondents, who are the heirs of Jagannath Prasad, Jamuna Prasad is now dead and is represented by Smt. Bataso, Mahesh Chandra, Dinesh Chandra, Ramesh Chandra, Suresh Chandra, Kumari Asha Devi and Kumari Usha Devi respondents 2/2 to 2/7. Smt. Ram Kali is also now dead and her legal representatives are already on the record.

2. On 11-12-1957, an agreement was executed by the appellants on the one hand and Jamuna Prasad and Jagannath Prasad on the other in respect of a Sahan land in district Farrukhabad. It was presented for registration by Jamuna Prasad on 8-1-1958. Jamuna Prasad and Ram Gopal, appellant No. 1 admitted execution, but Jagannath Prasad did not appear before the Sub-Registrar. Registration was thereupon postponed. On 10-1-1958 registration was refused as to Jagannath Prasad executant by the Sub-Registrar. The appellants then presented an appeal to the District Registrar, but it was dismissed on 10-1-1959. On 9-2-1959, this suit was filed by the appellants for directing the respondents to get the document registered, and in case they failed to do so for directing the Sub-Registrar to register the document. Jagannath Prasad died before the institution of the suit and respondents 1 and 3 to 8 are his legal representatives.

3. In defence, execution of the document by Jagannath Prasad was denied. But it is no longer in dispute that the document was executed by Jagannath Prasad also. Nor is the question of the presentation of the document before the Sub-Registrar within time in dispute now. The only question in controversy now is whether the suit was or was not legally maintainable because an appeal was filed before the District Registrar and no application under Section 73 of the Registration Act was made before him within 30 days of the refusal of the Sub-Registrar. The learned Munsif decreed the suit. The first appellate Court allowed the appeal, reversed the decree of the learned Munsif and dismissed the suit, inasmuch as Jagannath Prasad did not appear before the Sub-Registrar to admit execution of the document. His non-appearance was treated by the Sub-Registrar as a denial of the execution and the appellant should have consequently filed an application before the District Registrar under Sec. 73 and not an appeal under Section 72 of the Registration Act. Since no application was filed in accordance with the provisions of Section 73 the procedure provided by law was held not to have been complied with, and consequently no suit was held maintainable under Section 77 of the Registration Act.

4. The learned counsel for the appellants contends that in the first place mere non-appearance does not amount to a denial of execution, that the Sub-Registrar himself did not refuse to register on the ground of a denial of execution and that the District Registrar was in error in having treated the order of the Sub-Registrar as a refusal to register on such a ground and should not have dismissed the appeal. The learned counsel for the appellant also contends that even if the order of the sub-registrar be treated as being one on the basis of denial of execution and the appeal could not be treated as an application since it was not verified in accordance with Section 3 of the Registration Act, the order of the District Registrar amounted to a refusal to order registration of a document and that the suit was consequently maintainable under Section 77 of the Registration Act.

5. The document presented for registration was filed in the trial Court, but, after the decree of the trial Court the document was returned to the appellants for presentation to the Sub-Registrar for registration. We considered it necessary to have the document before us and we found that all that the Sub-Registrar said on 8-2-1958 wa

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