Gulzari Lal vs Daya Ram And Anr. on 21 October, 1886

Allahabad High Court
Gulzari Lal vs Daya Ram And Anr. on 21 October, 1886
Equivalent citations: (1887) ILR 9 All 46
Author: K John Edge
Bench: J Edge, Kt., Oldfield


John Edge, Kt., C.J.

1. A preliminary objection has been taken by the pleader of the respondents, namely, that no appeal lies from the order made by the Judge.

2. It is admitted by Pandit Bishambhar Nath that the appellant before us is a representative of the judgment-debtor, who was one of the parties to the original suit, under Section 244, Civil Procedure Code. So we need not inquire further as to what his position was. It is also admitted that the appellant did, on the application under Section 282, oppose the transfer, and on the ground that the respondent was not entitled to have execution of decree. There was thus distinctly a question arising between the parties or their representatives. In order to see if it comes under Section 244, let us see what it was about. The application by the assignee of the decree was made under Section 232 for transfer and execution, made with the object of having the fruits of the decree transferred to him. Under these circumstances there were questions raised between the parties to the suit or their representatives, and those questions related to the execution of the decree.

3. Is this order therefore appealable? Under Section 2 of the Civil Procedure Code, “decree” is defined as an “order determining any question mentioned or referred to in Section 244.” It is perfectly obvious that when the order was made for this transfer, it determined questions which were raised between the present appellant and the respondent.

4. Under these circumstances I am of opinion that an appeal does lie.

Oldfield, J.

5. I concur.

6. The appeal was then heard. The points urged on behalf of the appellant are stated in the judgment of Edge, C.J.

John Edge, Kt., C.J.

7. In this case an application under Section 232, Civil Procedure Code, was made by the respondent for the purpose of obtaining execution of a decree, of which he was the assignee.

8. A decree had been originally obtained by Hayat Begam and another in September 1882, and had been assigned by them to Hasan Raza Khan, who assigned to the respondent before us.

9. Three objections have been taken by Mr. Pogose to the order made in this case:

1. That the transferor had no notice issued to him under Sections 232, Civil Procedure Code.

10. There are two points to consider in this objection:

11. First, is the present appellant a person who can raise the objection? The present appellant is neither the original decree-holder nor the intermediate decree-holder, but a judgment-debtor. It is admitted by Mr. Pogose that if the present assignee of the decree were to obtain execution of the decree against his client, the original or intermediate decree-holder could not obtain execution. How then could the present judgment-debtor be prejudiced by the passing of this order? It is not suggested that the judgment-debtor could have raised any stronger objections to the execution being issued to Hasan Raza Khan, than be could have to its being issued to the present assignee. Consequently, I fail to see how the judgment-debtor can have any possible interest in the question as to whether the transferor had notice under Section 232, even assuming that the judgment-debtor bad a locus standi to raise the objection. Secondly, the objection arises under the proviso to Section 232, Civil Procedure Code. The penalty imposed by the proviso is that there should be no power to execute, if the proviso be not complied with. The transferor appears to be dead. But Mr. Pogose argues that if he were dead, it should be ascertained who his representatives are, and that the notice should have been served on them. I am bound to say that that would be imposing difficulties which do not think it was intended to impose. Further, it is contended that where there are more transferors than one, they should all be cited. It may be so. But the order appealed against is not an order for the execution of the decree, but merely for a transfer of names. Whether the order of the Subordinate Judge was meant to have been an order on which execution was to issue, I cannot say; but execution clearly cannot issue until an application has been made. If there is anything in point, it may be urged when the application in execution has been made. I seriously doubt if Mr. Pogose’s client can avail himself of the fact that these transferors were not cited. I accordingly hold that there is nothing substantial in the first objection that the transferor was not cited under Section 232.

12. The second objection raised is that the deed of assignment in favour of the first assignee was invalid in consequence of its not having been registered at the proper place for registration, and that the assignment by the first assignees to the respondent is consequently null and void: that is to say, although a hut, admittedly a portion of the property comprised in the deed of assignment, was situate at Bareilly, where the deed of assignment was registered, the registration was not one contemplated by Section 28 of the Registration Act, and the learned Counsel relies on Sheo Dayal Mal v. Hari Ram I. L. R., 7 All., 590, in which it is held that some portion of the property should be construed to mean “some substantial portion.” I doubt whether the judgment-debtor is a party who can raise the objection. It seems to me that that objection is one which should properly be raised between the transferor and transferee. However that may be, I am of opinion that there is nothing in the objection raised. Under Section 28 of the Registration Act it is provided: “Save as in this part otherwise provided, every document mentioned in Section 17, Clauses (a), (6), (c) and (d), and Section 18, Clauses (a), (b), and (c), shall be presented for registration in the office of a Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate.” Admittedly some portion of the property was and is still situate at Bareilly. It would cause endless law suits if we were to read into the proviso “substantial portion of the property.” For who is to decide what is a substantial portion of the property? One Judge may hold it to be 1/3rd, another 1/5th, and so on. I should therefore be very 10th to read the section as if it were to mean “some substantial portion.” No loss or injury can be caused by the assignee registering at Bareilly and not elsewhere; for we find Sections 64 and 65 of the Registration Act laying down that “every Sub-Registrar, on registering a document relating to immoveable property not wholly situate in his own Sub-district, shall make a memorandum thereof and of the endorsement and certificate thereon, and send the same to every other Sub-Registrar subordinate to the same Registrar as himself in whose sub-district any part of such property is situate, and such Sub-Registrar shall file the memorandum in his Book No. I.”

13. “Every Sub-Registrar, on registering a document relating to immoveable property situate in more districts than one, shall also forward a copy thereof and of the endorsement and certificate thereon, together with a copy of the map or plan (if any) mentioned in Section 21, to the Registrar of every district in which any part of such property is situate other than the district in which his own sub-district is situate.”

14. This would clearly prevent any case of fraud arising.

15. The third objection is, that Hasan Raza Khan’s name was not substituted for that of the decree-holder, the argument being that where a decree has been assigned by one assignor to another, the substitution of his name on the record in lieu of that of the original decree-holder is a condition precedent to the assignor’s passing title under the assignment. Mr. Pogose does not refer us to any section of the Civil Procedure Code which lays this down. The Calculate case-Greesh Chunder Sein v. Gudadhur Ghose I. L. R., 5 Cal., 869,–which has been cited does not appear to apply.

16. Under these circumstances, I am of opinion that this appeal must be dismissed with costs.

Oldfield, J.

17. I concur and agree with the Chief Justice on the several points raised, especially on the question raised under Section 28 of the .Registration Act.

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