1980 PLP 1577 (CLC)

(c) ................................................................................ (d) (e) non-testamentary instruments transferring or assigning any' decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in unwire, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property." The carried counsel for the respondent interpreting the above provisions of law has argued that it is only the non-testamentary instrument which if it has -the effect of transferring or assigning any decree or order of a Court or any award that it would require the registration in any case the value of the property involved therein is Rs. 100 and upwards and not the decree or order or award itself. The learned counsel for the appellant on the contrary has interpreted this sub-clause so as to mean that any decree or order of a Court or any award of the value of Rs. 100 and upwards was required under the law to be registered. The learned counsel for the appellant has relied on Uttamchand Motilalji v. Wasudeo Deora. Digambar (A I R 1946 Nag. 311). The relevant portion is quoted below :- "Before the amendment of 1929, an award was exempt from registration by virtue of section 17 (2) (vi). Now by the amendment it is no longer so exempt and as a document creating a charge on immovable property of value of Rs. 100, or more it must be registered." Reliance is also placed on Jagdish Mahton and others v. Sundar Mahlon and others (A I R 1949 Pat. 393). It was held in that case that :- "In this connection, reference may also be made to the provisions of the Registration Act permitting registration where execution. is admitted by some of the executants of a document. These are contained in subsection (3) of section 35 of the Act. Whether circumstances existed making it permissible to register a document in respect of only some of the executants is a matter for investigation."

4. Learned counsel for the respondent; on the contrary, argued that the above judgment of the Patna case relied upon by the appellant was overruled by a Full Bench judgment of the same Court Seonarain Lai v. Tarbhu Chand (A I R 1958 Pat. 252). The aforesaid judgment is applicable to the facts of the present case which laid down a law which seems to be the correct interpretation of section 17 (1) (e). This judgment specially takes note of the peculiar circumstances of the present case that is the award had been obtained without the intervention of the Court and had been made the rule of the Court without any objection of the non-registration of the award having been raised in the proceedings. The relevant observations of the said judgment pertinent to the point in issue are quoted below . - "This shows in unmistakable terms that an award, though given without the intervention of the Court, has to be made a rule of the Court, and the Court will pronounce judgment on the basis of the award, and a decree shall follow that is to salt, the award by itself is of no effect, Effect to the award is given only when a judgment has been pronounced on its basis followed by a decree, In the Second Schedule to the Code of Civil Procedure there were also similar provisions for passing a judgment on the basis of the award and thereupon a decree was to follow, but what distinguishes the present provision from the earlier one in the Code of Civil Procedure is that the 1940 Act bars jurisdiction of all Courts to pronounce upon the validity, effect or existence of an award or arbitration agreement except the Court under the Act itself." The judgment Uttam Chand Motilalji v. Wasudeo Deorao Digambar does not deal with the point in issue therefore is of no avail in view of an elabo rate discussion on the point in the judgment Seonarain Lai v. Prabhu Chand. There is yet another judgment of the Lahore High Court reported as Hans Raj v. Amar Chand (A I R 1940 Lah, 107) where in somewhat similar circumstances it was held that the terms of the award in the decree that follows must be deemed to be embodied in the decree and that an award was exempt from registration and was admissible in evidence in order to understand the decree. The relevant portion is quoted below :- The award has not been yet registered. But as it is not disputed that the award produced is the award which was relied on in the judicial proceedings on which the decree was passed, 1 hold it to be admissible for understanding the terms of the decree passed on its basis. As the copy of the award was not allowed to be produced in the trial and as it is necessary to refer to the award to understand the terms of the decree, I allow it to be produced as additional evidence in this Court as prayed for." There is yet another authority reported as Abdul Karim v. Mirza Bashi? Ahmad (P L D 1967 Lah. 365). It was observed in that case :- "It will appear that this section requires registration only of such documents which by themselves purport to create or transfer rights or interest in immovable properties over Rs.

100. It is to be remembered that an award by itself cannot purport to create or transfer any interest in a property unless it is made a rule of the Court. It is a common ground that Exh. P. ' was to create any interest, etc., and therefore, did not require registration. The view which we have taken was taken by a Full Bench of Patna High Court in Seonarain Lail v. Prabhuchand A I R 1958 Pat. 252 where after referring to the various provisions of the Arbitration Act, it was held that no award can operate unless it was made a rule of the Court, and, therefore, an award which has not been made a rule of the Court would not require registration. In this view of the matter, Exh. P. 3 was not inadmissible in evidence and the finding of the learned Single Judge on this point, therefore, is not maintainable."

5. In view of the above discussion therefore it is to be presumed that in the present case the award though not registered and having been made the rule of the Court a suit for perpetual injunction was maintain able if the terms of the award as incorporated in the decree were violated and the same could be referred to for the purpose of grant of perpetual A injunction under section 54 of the Specific Relief Act. The question of non-registration of an award is therefore being decided only in the circumstances when it is made on a reference outside the Court and its terms incorporated in a decree and when the same is required, to be referred in any subsequent proceedings.

6. This appeal has therefore no force and is dismissed with no order as to costs. M. Y. M. Appeal dismissed.