IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 WP(C).No. 22959 of 2008(G) -------------------------- OS.431/2003 of II ADDL.SUB COURT,KOZHIKODE .................... PETITIONER: ------------ N.S.BALASUBRAMANIAN S/O.LATE N.S. SUBRAMANIA IYER AGED 63 YEARS, RESIDING AT SHEELA COTTAGE AT TALI IN KASABA AMSOM AND DESOM OF KOZHIKODE TALUK IN KOZHIKODE DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER, N.SUBRAMANIAN BY ADV. SRI.A.P.CHANDRASEKHARAN (SR.) SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR RESPONDENTS: ------------- 1. N.S.VENKITACHALAM ALIAS N.S.MURUKESH AGED 60 YEARS, PERMANENTLY RESIDING AT KUWAIT AND NOW RESIDING AT IN HOTEL IN KASABA AMSOM AND DESOM OF KOZHIKODE TALUK, KOZHIKODE DISTRICT 2. N.S. SUBHA RAMAN, AGED 65 YEARS AND S/O. LATE N.S. SUBRAMANIA IYER AND RESIDING AT TALI IN KASABA AMSOM AND DESOM OF KOZHIKODE DISTRICT 3. MRS. N.S.RAJAM SUBRAMANIA AYYAR WIDOW OF LATE N.S.SUBRAMANIA IYER AGED 82 YEARS, RESIDING AT TALI IN KASABA AMSOM AND DESOM OF KOZHIKODE DISTRICT , KOZHIKODE DISTRICT . BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No.22959 OF 2008 ............................................ DATED THIS THE 30th DAY OF JULY, 2008 JUDGMENT This petition is filed under Article 227 of Constitution of India to quash Ext.P3 order passed by Sub Judge, Kozhikode dismissing I.A.4029 of 2007 filed by petitioner in O.S.431 of 2003. O.S.431 of 2003 is a suit, which was jointly tried with O.S.469 of 2002 and finally disposed by this court as per judgment dated 27.10.2006 in R.S.A.434 and 435 of 2006. As per the judgment, this court dismissed the second appeals, confirming the concurrent decree passed by Sub Court as confirmed by District Court. It is thereafter, petitioner/plaintiff in O.S.431 of 2003 filed I.A.4029 of 2007, with a prayer to intimate the Land Registration Department about the findings of the court in respect of Ext.A5, a registered settlement deed executed on 24.12.1985. Petitioner contended that as per the judgment of trial court confirmed by this court, it was found that Ext.A5 document is to be ignored and therefore it has no legal effect or consequence and as provided under Rule 185 of Civil Rules of Practice and Section 89 of Registration Act, court should intimate the fact to the Sub Registrar. WP(C) 22959/2008 2 2. Learned Sub Judge, under Ext.P3 order, dismissed the application, finding that neither Rule 185 of Kerala Civil Rules of Practice or Section 89 of Registration Act applies to the facts of the case and therefore petitioner is not entitled to get the matter intimated to the Sub Registrar as sought for. 3. Learned senior counsel appearing for petitioner was heard. The argument of learned counsel is that a liberal interpretation has to be given to Section 89 of Registration Act and Rule 185 of Civil Rules of Practice and if so interpreted, sub- section 5 of Section 89 of Registration Act shows that a decree or order creating, declaring, transferring, limiting or extinguishing only right, title or interest by a decree or order of the court is to be intimated to the Sub Registrar. Argument is that as per the concurrent judgment in O.S.431 of 2003, Ext.A5 is found to be not conveying title to the property and therefore learned Sub Judge should have intimated the conclusions on document 334 of 1985 to the Sub Registrar. 4. Rule 185 of Civil Rules of Practice reads:- “ Under the said rule, if a decree or order is passed for cancellation of any instrument WP(C) 22959/2008 3 registered under the law relating to registration of documents or a document is registered in pursuance of the decree or order and such decree or order is reversed or set aside, court is bound to forward to the registering officer a copy of the final decree or order on plain paper verified as correct.” 5. As rightly found by learned Sub Judge, what is provided under Rule 185 is to send a copy of the decree or order of the court to the Sub Registrar, if it is cancellation of any instrument. Under the judgment in O.S.431 of 2003, or O.S.469 of 2002, registered document 334 of 1985 of S.R.O, Kozhikode was neither cancelled nor set aside. Therefore Rule 185 has no application to the facts of the case. 6. The relevant provisions in Section 89 of Registration Act as applicable to State of Kerala reads:- WP(C) 22959/2008 4 Copies of certain orders, certificates and instruments to be sent to registering officers and filed :- (1)XXXXX (2)XXXXX (3)XXXXX (4)XXXXX (5)“ Under the sub section, every court passing a 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 attachment of immovable property or for the release of any immovable property from attachment, shall send a copy of such decree or order together with a memorandum to the registering officer within the local limits of whose jurisdiction the whole or any WP(C) 22959/2008 5 part of the immovable property is comprised.” Therefore to invoke sub-section 5 of Section 89, a decree or order should create, declare, transfer, limit or extinguish, any right or title or interest to or in the immovable property. The decree and judgment in O.S.431 of 1985 or O.S.435 of 2006 do not do so. The argument of the learned counsel is that a very liberal interpretation is to be given to the said provision and therefore even a copy of the judgment in O.S.431 of 2003 is to be forwarded to the Sub Registrar. As rightly found by learned Sub Judge, Section 89(5) of Registration Act has also no application to the facts of the case. In such circumstances, I do not find any reason to interfere with Ext.P3 order passed by learned Sub Judge. Learned senior counsel then submitted that petitioner may be permitted to forward a copy of the judgment to the Sub Registrar. Petitioner is at liberty to do so. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE lgk/-