A ‘decree’ is a formal expression of an adjudication which as far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in a suit. Both judicial order and decree are public documents.
In this regard, some important provisions of the Registration Act, 1908, herein after called “The Act” must be taken into account. The Act is a central legislation, which is applicable to whole of India except the State of Jammu and Kashmir. Section 17 of the Act specifies the documents for which registration is compulsory. Sub-Section (1)(e) of the Act is replicated below –
“non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested of contingent, of the value of one hundred rupees and upwards, to or in immovable property:
Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.”
The cumulative effect of the above provision is that every decree, whether it is primary or final, if it relates to any immovable property valued rupees 100 or more, requires compulsory registration. Even a temporary Injunction order passed relating to immovable property passed under Order 39, Rule (1) and (2) requires registration under Registration Act, 1908.
The Act also prescribes the procedure for registration of a decree. Sub-Section (1) of Section 89-A provides that –
Every Court passing –
- Any decree or order creating, declaring, transferring, limiting or extinguishing any right, title or interest to or in immovable property in favour of any person, or
- An order for interim attachment or attachment of immovable property or for the release of any immovable property from such property from such attachment,
shall, in accordance with the rules made in this behalf, send a copy of such decree or order together with a memorandum describing the property as far as may be practicable, in the manner required by Section 21, to the Registering Officer within the local limits of whose jurisdiction the whole or any part of immovable property comprised in such decree or order is situate, and such officer shall file the copy of the memorandum in his Book No. 1.
Section 49 of the Act clarifies the effects of non-registration of document required to be registered. The provision lays down that if a document that requires registration under Section 17 of the Act or under any provision of the Transfer of Property Act, 1882, till the time has not been registered, it shall not:
- Affect any immovable property comprised therein,
- Confer any power to adopt, or
- Be received as evidence of any transaction affecting such property or conferring such power.
The proviso to the said rule says that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument.
Now the important question for consideration is whether an unregistered decree or judicial order which requires compulsory registration under Section 17 of the Act is executable or not. The simple answer is that Section 49 does not come in the way of execution of such decree or order. In this context, it is pertinent to cite two judgements.
- In the case of Ramavtar Kedarnath Gupta versus Ramgopal since deceased through Legal Representative, Reported in 2002(3) MP Law Journal 118, the Madhya Pradesh High Court held that an Arbitral award, although not registered as required under Section 17 of the Registration Act, 1908, could not be thrown out as a waste paper even if the same was not made a rule of Court. Likewise, judicial orders and decrees cannot be overlooked if they are not registered under the Registration Act, 1908.
- In the recent case of Suraj Lamp and Industries Pvt. Ltd. versus State of Haryana, reported in 2012(4) MP Law Journal (SC) 315, the Supreme Court observed that registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries in regard to transactions and execution of the documents.
The importance of the registration of court decrees and orders could also be understood by the following two illustrations—
- X has a registered will in his favour. Mr. Y challenged the will in a civil court. The court declares that the will was suspicious and void. Accordingly, the court issued decree in favour of Mr. Y. But the court does not send the decree for registration to the Registrar. If Mr. X sells the property comprised in the will to Mr. Z, without disclosing this fact that the will has been declared void, the sale would amount to fraud. This fraud could have been prevented, if the decree was registered in time under the Act.
- A purchases a property from Mr. B, which property does not belong to Mr. B. Mr. C challenges the sale deed in a civil court and obtains the decree in his favour and declaration that he is the owner of the property. The copy of decree is not registered as per Section 17 of the Act. If Mr. A, representing himself to be the owner of the property, sells the property to Mr. D, Mr. C will have to file a fresh suit against Mr. D. In the suit, Mr. D may take the defence that he is a bona fide purchaser who has paid the consideration.
To avoid such unpleasant situations, it is strongly recommended that every decree and judicial order, even if passed by way of an interim injunction, that affects the rights in respect of and/or obligations toward an immovable property, is registered under the Registration Act, 1908.