CASE TITLE : KAUPIN DHARI MAHIMA SAMAJ AND ORS. VS. SATYA MAHIMA DHARMA DHAM PARICHALANA SAMITI & ORS.
CASE NO : CMP NO.1036 of 2022
DATE OF JUDGMENT : April 05, 2024

n the present case, while hearing the Interlocutory Application filed for extension of earlier interim order, the Hon’ble court found merit that the case has to be gone into. Therefore, with the consent of the parties, the present CMP was taken up for final disposal. The background in which the present CMP has been filed is that a TS No.33 of 1988 was filed by Plaintiffs for declaration of joint title and confirmation of possession of the Plaintiffs-Opposite Parties over the suit land in Plot No.1443 and for permanent injunction against the Defendants restraining them from constructing any wall or construction over any part of the said plot and from disturbing the very passage of the Plaintiffs over the said Plot No.1443 under Khata No.13 in village Joranda, Dhenkanal. The said suit was decreed on contest against the defendant vide Judgement dated 31st July, 1990. Thereafter, once the decree was unsuccessfully challenged by the Defendants, the and Plaintiffs filed Execution Case No.3 of 2001 alleging that the Defendants have constructed a wall over Plot No.1443 and obstructed passage of the Plaintiffs/Opposite Parties. The Defendants/JDrs. appeared and filed an application in CMA No.8 of 2009 under Section 47 CPC, which was dismissed for being not moved. To restore the CMA No.8 of 2009, CMA No.10 of 2022 was filed, which has been dismissed by the Executing Court for being grossly time barred.

At this point, the Petitioners have challenged the rejection of the CMA No.10 of 2022 by the Executing Court by arguing that The scope of Section 47 CPC is very wide and all the issues which could have been raised by filing a separate suit can be raised in a petition under Section 47 CPC. Therefore, learned executing Court should not have rejected the petition casually without delving into the merit of the said petition. The Petitioners have also put forth the argument that Article 137 of the Limitation Act is not applicable to a proceeding under Section 47 CPC and there is no provision either in CPC or in the Limitation Act prescribing time limit for filing of an application under Section 47 CPC. Moreover, the CMA No.8 of 2009 was dismissed for default, which was beyond the control of the Petitioners.

Controverting the arguments advanced by the Petitioners, the Decree Holders/Opposite Parties argued that even though the Limitation Act is applicable to execution proceedings, Section 5 thereof has no application to an execution proceeding. They have also argued that Article 137 of the Limitation Act governs an application under Section 47 CPC which is only three years from the date the right to file such petition accrues, i.e., the date of appearance of the JDrs. Therefore, given the gross delay in the present case, no purpose would be served by restoring the said application, when the said application was itself, time barred. To buttress their arguments, the Opposite parties have relied upon the decision in Rasomay Mitra Vs. Smt. Lachmi Todi (AIR 1982 Cal 178).

The Hon’ble Court, after considering the arguments advanced and case laws cited, has arrived at the conclusion that learned executing Court has rightly held that no purpose will be served by restoring the application under Section 47 CPC (CMA No.8 of 2009), since there has been a delay of more than seven years in filing the petition under section 47 in the present case (as against the permissible time limit of three years, in light of Article 137 of the Limitation Act). Moreover, it has been held that the Petitioners, having stepped into the shoes of the Judgement Debtors, are bound by the decree to be executed as well as the legal action taken by their predecessors. Therefore, no fault can be attributed to the Learned Executing Court in rejecting the CMA No.10 of 2022. As such, the Hon’ble court has dismissed the current CMP on the ground that it lacked merit and vacated the earlier interim order.

CASE TITLE : RAJASHREE GAJENDRA VS. DISTRICT SUB-REGISTRAR, KHORDHA & ANR.
CASE NO : W.P.(C) NO. 32589 of 2023
DATE OF JUDGMENT : January 31, 2024

The Petitioner has challenged the Endorsement dated 13.04.2023 and the Appellate order dated 11.09.2023, containing the refusal to register the cancellation deed of a registered Joint Venture Agreement dated 11.01.2013 (‘JVA’) by the District Sub-Registrar, Khordha at Bhubaneswar-Opposite Party No.1 and the confirmation thereof respectively. The issue pertains to JVA executed between the Petitioner and one Unique Mercantile India Pvt. Limited (‘UMIL’). The Petitioner presented a deed of cancellation of such JVA which was refused by the District Sub-Registrar on the ground that the cancellation of Agreement Deed cannot be registered in the event of a one-sided cancellation.

It is the Petitioner’s case that the JVA was not required to be registered under Section 17 of the Registration Act, 1908 (‘the Act’). Ergo, there was no legal impediment for registering the deed of cancellation. Additionally, as per Section 22-A(1)(b) (Odisha Amendment) of the Act and Rule 148 of the Odisha Registration Rules, 1988, there is no restriction for registering deed of cancellation of JVA unilaterally. On the other hand, the District Sub-Registrar has contended that the JVA created interest in the scheduled property in favour of both the parties concerned. Therefore, the Petitioner cannot unilaterally cancel the deed of registration of JVA. The Petitioner has controverted the aforesaid contention on the ground that the Sub-Registrar’s order cannot be supplemented by reasons not spelt out in the endorsement, and has relied on Popcorn Entertainment and another vrs. City Industrial Development Corporation and another (2007) 9 SCC 593, JVPD Scheme Welfare Trust vrs. Chief Officer Maharashtra Housing and Area Development Authority and others (2019) 11 SCC 361, and Mohinder Singh Gill and another vrs. Chief Election Commissioner, New Delhi and others (1978) 1 SCC 405.

The Petitioner has also stated that the Letter No.3700/IGR, dated 23.05.2011, relied upon by the District Sub-Registrar relates to registration of deed of cancellation of a registered sale deed only and the deed in question not being a registered sale deed, is not influenced by the same. On the contrary, the Opposite Party has claimed that the recital of the JVA discloses that it is an agreement for sale. Therefore, it is compulsorily registerable under Section 17 of the Act (which it has been) and it can only be cancelled following due procedure of law and not unilaterally. The District Sub-Registrar has relied upon P. Venkata Ravi Kishore and another vrs. JMR Developers Pvt. Ltd. and others reported in 2022 SCC OnLine TS 3387, to support his Contention.

In final adjudication of the matter, the JVA has been held to be a deed of conveyance relaying certain rights by the Petitioner to UMIL. Regarding Section 22-A(1)(b) (Odisha Amendment) of the Act, which refers to cancellation of registered sale deed only, it has been held that the provision is inclusive in nature and covers any other deed of such nature, and a purposive interpretation of the same is required to achieve the object of its introduction. Since, a sale deed is essentially a deed of conveyance, the provision under Section 22-A(1)(b) (Odisha Amendment) of the Act also brings within its ambit any kind of registered deed of conveyance. In this context, the Hon’ble court has referred to P. Venkata Ravi Kishore and another vrs. JMR Developers Pvt. Ltd. and others reported in 2022 SCC OnLine TS 3387 and Satya Pal Anand Vs. State of Madhya Pradesh and others, reported in (2016) 10 SCC 767.

Ultimately, the Hon’ble Court has concluded that although the Opposite Party No.1 has rightly held that registration of the deed of cancellation of a registered deed of JVA cannot be done unilaterally, but the letter which formed the basis of such opinion has no application to this case. Similarly, the letter dated 18.12. 2012 has also been held to inapplicable to the present case. Additionally, in light of Mohinder Singh Gill (supra), it has been held that the statutory Authority cannot justify its order by supplementing reasons by an affidavit, which are not spelt out in the order itself. Thus, the grounds set out in the Counter Affidavit of Opposite Party No. 1 cannot be taken into consideration to justify the said order of refusal. Consequently, the Writ has been allowed, the impugned orders have been set aside, and the District Sub-Registrar, Bhubaneswar-Opposite Party No.1 has been directed to consider the registration of deed of cancellation of registered deed of JVA afresh, in light of the observations and discussions made in the judgment.