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Judgment
Chandra Reddy, C.J.—This second appeal raises a difficult though interesting question of law, namely, whether an instrument of mortgage
executed by a court in pursuance of a decree for specific performance needs attestation by two witnesses as required by Section 59 of the
Transfer of Property Act.
The facts that contributed to this litigation and which have given rise to this question may be briefly narrated. The 2nd respondent had borrowed
a sum of Rs. 900/ from the appellant and executed a promissory note for that sum on 3-8-1952 arid, at the same time, agreed to create a
mortgage over the suit property for that debt in favour of the plaintiff if the promissory note debt was not discharged within three months of the
date of the promissory note. He neither made the repayment nor executed the mortgage as undertaken by him. Therefore, the plaintiff was obliged
to lay an action for specific performance of the agreement to execute a mortgage -- O. S. No. 23 of 1953 in the Court of the District Munsif,
Amalapuram. That suit was decreed on 7-3-1953. and. in execution of that decree, the District Munsif had executed a mortgage deed in favour of
the plaintiff acting under Order XXI Rule 34 C. P. C. (Ex. A-1).
Meanwhile, the 1st respondent sued the 2nd respondent in Small Cause Suit No. 173 of 1953 on the file of the Court of the Subordinate Judge,
Amalapuram, for recovery of the money due to him on a promissory note and had a judgment entered in his favour on 20-10-1952. In execution
of that decree, he brought the property covered by that mortgage to sale and purchased one of the items. In the present suit, out of which, this
Second Appeal arises, the plaintiff sought to enforce the mortgage in his favour. This suit was contested by the first respondent, inter alia, on the
contention that Ex. A-1 was not valid as it was not duly attested and hence no effect could be given to it.
The trial Court decided that the mortgage deed having been executed by the Court, it was not a transaction amounting to transfer of property by
act of parties and, therefore, was excepted from the mandatory provisions of Section 59 of the T.P. Act, On appeal, that judgment was reversed
by the Subordinate Judge, Amalapuram, who held that the mortgage, even if it was executed by a Court, was hit at by Section 59 of the T.P. Act
since it falls within the mischief of Section 2(d) of the T.P. Act and consequently it was necessarily to be attested by at least two witnesses. The
learned Judge was of opinion that the document was invalid in law without attestation, since the seal of the Court appearing on the document was
not a substitution for the attestation by two witnesses. Aggrieved by this decision, the plaintiff has brought this Second Appeal.
The point for determination is whether the documents executed by a Court under Order XXI Rule 34 have to be in conformity with Section 59
of the T.P. Act. As the controversy revolves round the interpretation of some of the statutory provisions embodied in the T.P. Act, and the C.P.C.,
it is useful to extract them here.
Older XXI Rule 34:
Where a decree is for the execution of a document or for the endorsement of a negotiable instrument and the judgment-debtor neglects or
refuses to obey the decree, the decree-holder may prepare a draft of the document or endorsement in accordance with the terms of the decree
and deliver the same to the Court.
The Court shall thereupon cause the draft to be served on the judgment-debtor together with a notice requiring his objections (if any) to be
made within such time as the Court fixes in this behalf.
Where the judgment-debtor objects to the draft, his objections shall be stated in writing within such time, and the Court shall make such order
approving or altering the draft as it thinks fit.
The decree-holder shall deliver to the Court a copy of the draft, with such alterations (if any) as the Court may have directed upon the proper
stamp-paper if a stamp is required by the law for the time being in force; and the Judge or such Officer as may be appointed in this behalf shall
execute the document so delivered.
The execution of a document or the endorsement of a negotiable instrument under, this rule may be in the following form, namely:
C.D., Judge of the Court of (or as the case may be), for A. B., in a suit by E. F. against A. B."", and shall have the same effect as the execution of
the document or the endorsement of the negotiable instrument by the party ordered to execute or endorse the same.
The Court, or such officer as it may appoint in this behalf, shall cause the document to be registered if its registration is required by the law for
the time being in force or the decree-holder desires to have it registered, and may make such order as it thinks fit as to the payment of the
expenses of the registration.
Indisputably, the document satisfies all the conditions envisaged by this rule including registration of the instrument.
But it is urged that it is not sufficient to comply with this rule if a document is to be effective legally and all the requisites of Section 59 of the T.P.
Act have also to be fulfilled. We will now read that section:
Where the principal money secured is one hundred rupees or upwards a mortgage (other than a mortgage by deposit of title deeds) can be
effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.
Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and
attested as aforesaid or except in the case of a simple mortgage by delivery of the property.
The instant case falls under the first paragraph. There is no dispute that one of the ingredients of this section, namely, attestation by at least two
witnesses is absent here, and if this section is applicable even to documents executed by a Court, the instrument is ineffectual. The question for
determination, therefore, is whether such documents are governed by Section 59 of the T.P. Act. The answer depends upon some other provisions
of the T.P. Act.
We may first notice the preamble to the T.P. Act which says:
Whereas it is expedient to define and amend certain parts of the law relating to the transfer of property by act of parties; it is hereby enacted as
follows.
It is thus immediately clear that the T.P. Act is not exhaustive of the law bearing on transfer of property and also that it applies only to acts of
parties. The latter proposition is also borne out by the provisions of Section 5 of the T.P. Act. For the present, we leave the question whether a
transfer of the kind involved in this appeal is an act of parties as this will have to be considered in another context.
We will now extract Section 2 on the correct construction of which depends the determination of this dispute.
In the territories to which this Act extends for the time being, the enactments specified in the schedule hereto annexed shall be repealed to the
extent therein mentioned. But nothing herein contained shall be deemed to affect:
a. the provisions of any enactment not hereby expressly repealed;
b. .......
c. ........
d. save as provided by Section 57 and Ch. IV of this Act, any transfer by operation of law or by or in execution of a decree or order of a Court of
competent jurisdiction.
His manifest that this section saves enactments which are not expressly repealed by that Act. Such of the statutes as are repealed by the T.P.
Act are contained in the schedule annexed to the Act of which the C.P.C. is not one. Therefore, if there was a provision in the C.P.C. by the time
of the enactment of the T. F. Act, it is not affected by any of the sections of the T.P. Act. It is needless to say that such a provision exists in the
shape of Order XXI Rule 34. But, in order to invoke clause (a), it is necessary that such a provision should have been in existence before the T.P.
Act came into operation. Although the T.P. Act had received the assent of the Governor-General on 17-2-1882, it came into force only on the 1st
day of July 1882, while the CPC of 1882 came into force on the 1st day of June 1882. Therefore, the CPC must be deemed to be in force before
the Transfer of Property Act took effect. It may be mentioned here that the relevant sections of the Code of 1882 were only a reproduction of
those in the Code of 1887 (Act X) which corresponded with parts of Section 202 of Act VIII of 1859. Undeniably, that Code contained
provisions resembling Order XXI Rule 34 and they were Sections 261 and 262. In the Code of 1882. they were not repealed but were re-
enacted with slight modifications in Order XXI Rule 34.
Section 261 : .
If the decree be for the execution of a conveyance, or for the endorsement of a negotiable instrument, and the judgment-debtor neglects or refuses
to comply with the decree, the decree-holder may prepare the draft of a conveyance or endorsement in accordance with the terms of the decree,
and deliver the same to the Court.
The court shall thereupon cause the draft to be served on the Judgment-debtor (in manner hereinbefore provided for serving a summons), together)
with a notice in writing stating that his objections if any thereto shall be made within such time (mentioning it) as the court fixes in this behalf.
The decree-holder may also tender a duplicate of the draft to the court for execution upon the proper stamp paper; if a stamp is required by law.
(On proof of such service), the court or such officer as it appoints in this behalf, shall execute the duplicate so tendered or may if necessary alter
the same so as to bring it into accordance with the terms of the decree and execute the duplicate so altered.
(Provided that) if any party object to the draft (so served as aforesaid) his objections shall within the time so fixed be stated in writing (and argued
before the court) and the court shall (thereupon) pass such order as it thinks fit, and execute or alter and execute, the duplicate in accordance
therewith. Section 262:
The execution of a conveyance or the endorsement of a negotiable instrument by the Court under the last preceding section may be in the following
form:
''C. D. Judge of the Court of (or as the case may be) for A. B., in a suit by E. F. against A. B. (or in such other form as the High Court may from
time to time prescribe) and shall have the same effect as the execution of the conveyance or endorsement of the instrument by the party ordered to
execute or endorse the same.
The only changes that were introduced in the Code of 1908, which have a material bearing on the present enquiry, are the substitution of the
word ""document"" in Sub-rule 5 for the word ""conveyance"" and the addition of Clause 6 requiring the registration of these instruments. The effect of
these changes will be considered presently. Thus, the CPC of 1882 itself prescribed a particular mode for the execution of documents by a Court.
It is plain from the provisions of the CPC that the attestation of at least two witnesses is not essential for documents executed by Courts. Is it
still necessary to have the attestation in such documents? That will be so only if Section 59 controls Order XXI Rule 34. In our considered opinion,
Section 59 of the Transfer of Property Act does not come into play in regard to instruments falling within the purview of Order XXI Rule 34. If
there is a conflict between the two, the former must yield to the latter by reason of Clause (a) of Section 2.
This view of ours gains support from the dictum of Chief Justice White in Mallikarjunadu Setti v. Lingamurti Pantulu ILR 25 Mad 244 One of
the points debated there was whether Section 310-A and Section 311 of the CPC of 1882, which are analogous to Order XXI Rules 89 and 90,
applied to sales of mortgage properties in execution of mortgage decrees. Section 311 was in existence in the Code of 1882 i.e., prior, to the
coming into force of the Transfer of Property Act, 1882, while Section 310-A was introduced for the first time in 1894. It was ruled by a Full
Bench of five Judges of that Court that they applied to such sales. Though there was difference of opinion between Sir Arnold White C.J. and
Moore J. On the one hand and Davies, Benson and Bhashyam Ayyangar JJ. on the other, on the question of the appealability of an order made in
a proceeding in execution, there was unanimity of opinion on the point as to the scope of Section 310-A and Section 311. Dealing with this
question, this is what Chief Justice White said:
As regards Section 311, I have felt no difficulty. At the time the Transfer of Property Act was passed, the enactment which is reproduced as
Section 311 of the Code had long been in existence. In passing the Transfer of Property Act the Legislature must be taken to have had in mind the
existence of such a general provision. Section 2 of the Transfer of Property Act provides that nothing in that Act shall be deemed to affect the
provisions of any enactment not thereby expressly repealed. As regards Section 311, I think the question should be answered in the affirmative.
It was maintained by Sri B. V. Subrahmanyam that the rule stated by Chief Justice White was not accepted by the majority of Judges and that
it runs counter to the principle enunciated by Davis J. and the other two learned Judges who agreed with him. We have searched in vain in the
judgments of these three Judges for any remarks that would lend countenance to this theory. All that the three learned Judges and in fact all the
Judges said was that there was no inconsistency between Sections 310-A and 311 of the CPC on the one hand and Sections 87, 89 and 93 of the
Transfer of Property Act on the other. Benson J. remarked that both the Acts must be read together and effect must be given to both unless they
were found to be inconsistent. The following remarks of Davies J. would indicate that he was not in disagreement with Chief Justice White on this
aspect of the matter.
The fact that Section 310-A was enacted at a later date than Section 311 and after the Transfer of Property Act had come into operation cannot
make any difference. Section 310-A being incorporated as it is in the CPC now forms part of and parcel of it.
This passage shows that Section 311 was left intact by virtue of its having been extant at the time of the passing of the Transfer of Property Act.
This doctrine is in accord with the pronouncement of the Privy Council in the Irrawaddy Flotilla Co. v. Bugwandas ILR 18 Cal 820 . The
controversy there was whether the greater liability of the common carrier that arose under the Carriers'' Act III of 1865 was affected by the Indian
Contract Act of 1872 which imposed a restricted liability on the common carrier. Under the former Act, the common carriers were answerable for
the goods entrusted to them ""at all events"" except in the case of loss or damage by the act of God etc.
The combined effect of Sections 6 and 8 of that Act was that, in respect of the property not of the description contained in the schedule the
common carriers may limit their liability by special contract but not so as to rid themselves of liability by negligence. This Act was in operation when
the Contract Act of 1872 was passed, Under Sections 151 and 152 of the latter Act the bailee was bound to take as much cars of the goods
entrusted to him as a man of ordinary prudence would take of his own goods, of the same quality, value and bulk. But. in the absence of a special
contract, no responsibility shall attach to him
for the loss, destruction or deterioration of the tiling bailed, if he had taken the amount of care of it as described in Section 151"".
In a suit brought by the owner of the goods for damages, the common carrier wanted to avail himself of the relevant provisions of the Indian
Contract Act, which reduced the liability in the manner indicated above. Their Lordships in agreement with the Rangoon High Court negatived the
plea of the common carrier that the provisions of the Carriers"" Act were superseded by Chapter IX of the Indian Contract Act which treats of
bailments. The ratio decidendi of that ruling was that Section 1 of the Indian Contract Act, which very much resembles Section 2 of the Transfer of
Property Act, had left the provisions of the statute relating to common carriers untouched by the Indian Contract Act. The preamble to the Indian
Contract Act, which recites ''it is expedient to define and amend certain parts of the law relating to contracts is similar in terms to the Transfer of
Property Act. Section 1 of the Contract Act, after repealing the enactments mentioned in the schedule proceeds as follows :
But nothing herein contained shall affect the provisions of any statute, Act or Regulation not hereby expressly repealed nor any usage or custom or
trade nor any incident of any contract not inconsistent with the provisions of this Act.
Construing the preamble as also Section 1, their Lordships ''aid down, inter alia, that the relevant sections of the Carriers'' Act survived
notwithstanding the passing of the Contract Act. It was observed that the legislature would not have intended to sweep away the common-law by
a side wind and by way of codifying the law leave the law to be gathered from two Acts, which proceed on different principles and approach the
subject, if the subject be the same, from different points of view.
We think that this decision is in point and affords us much guidance in the present enquiry. There can be little doubt that Order XXI Rule 34 is
not displaced by Section 59 of the Transfer of Property Act. If in codifying the law of transfer the Indian legislature had thought it fit to deal with
documents executed by Courts also, it would certainly have1 made its intention clear by appropriate language.
The learned Counsel for the respondents invited us to hold that Order XXI Rule 34 did not survive after the Transfer of Property Act came
into force on the analogy of Srinivasa Sastri v. Seshaiyyangar. ILR 3 Mad 37 The point that called for determination there was whether the
registration of the memorandum of a sale certificate, was sufficient or. whether the sale certificate itself was to be registered u/s 17 of Act XX of
1866, which was in force at the relevant time and was subsequently repealed.
The Full Bench decided that the sale certificate was inoperative for want of registration and the suit itself could not be maintained On the basis of it.
Act VIII of 1859 (Civil Procedure Code) by Section 259 declared that the certificate issued by a Court to the purchaser of Immovable property
at a sale held in execution of decree shall be taken and deemed to be a valid transfer of the right, title and interest purchased. Nevertheless, it was
held that the certificate had to comply with the terms of Section 17 of that Act which required registration.
It was further observed by Chief Justice Turner that it is because of the current of judicial precedents that it was necessary to register the certificate
of sale itself, that the words in the Code of 1859 which was the statutory ancestor of the present Code and which afforded ground for the
contention that the certificate created or declared an interest in Immovable property were omitted in Section 316 of the CPC of 1877 and that
amendments were made in the registration law to enable the registration of copies of such certificates in the same manner as decrees.
We cannot derive any help from this case. It may be remembered that there was no saving clause in Act XX of 1866 as in the Transfer of
Property Act. On this discussion, it follows that the operation of Order XXI Rule 34 was not in any way disturbed by the provisions of the
Transfer of Property Act in so far as it bears on documents executed by a Court. Therefore, the requirements of Section 59 cannot be imported
into this provision. Hence, the validity of such documents has to be considered With reference to the terms of Order 21 Rule 34; C.P.C.
Another point presented by the counsel for the respondents was that Order XXI Rule 34 did not dispense with attestation as envisaged by
Section 59 of the Transfer of Property Act, because Sub-rule 5 of Rule 34 invested documents executed by a court only with the character of
documents executed by a party, which means that the documents will be deemed to have been signed by the judgment-debtor and not that they
were signed by the party and attested by at least two witnesses. The comment of the learned counsel is that the execution of the document did not
include the attestation, execution being equivalent only to the signing of the document by the party. This theory is sought to be substantiated with
the help of a few of the decided cases.
In Muniappa Chettiar v. Vellachamy Hannadi, Mummadi, 9 M LW 5; AIR 1919 Mad 469 it was laid down by a Bench of the Madras High
Court that the attestation of a document within the meaning of Section 59 did not consist merely in seeing the execution of the document and a
further act was required, namely subscribing the name of the witness on the document as having seen the execution.
In Shamu Patter v. Abdul Kadir, ILR 35 Mad 607 the Privy Council, in affirming a decision of the Madras High Court held that the attestation
of a mortgage deed within the scope of Section 59 should be made by the persons signing their names after seeing the actual execution of the deed
and that mere acknowledgment of the signature by the executant was not sufficient.
To a similar effect is a judgment of the Privy Council in AIR 1925 203 (Privy Council) It was ruled there that a document could not be said to
be duly attested within the purview of Section 70 of the Indian Evidence Act, if it was merely signed by persons, who though professed to have
witnessed its execution, in truth did not see its execution. We feel that these cases do not lend much assistance to the respondents. In none of these
decisions was this aspect of the matter, namely, whether the due execution of a document involved the idea of its being attested, considered. They
were only concerned with the problem as to what constituted proper attestation. Therefore these decisions cannot be regarded as laying down the
proposition that due execution. of a document did not include attestation.
In Wharton''s Law Lexicon, the execution of deeds is defined as ''the signing, sealing and delivering of them by the parties as their own acts
and deeds in the presence of witnesees''. A similar meaning is given in regard to the execution of wills. One of the meanings given to the word
''execute'' in the Oxford Dictionary is ""to make (legal instrument) valid by signing, sealing etc."" It is clear from this that the execution of a document
implies the making of a valid instrument i.e., everything that is necessary to make it valid should be performed.
That the mere signing of a document does not amount to execution thereof hut means something more than that and includes signing in the
presence of witnesses, where witnesses are necessary is established by several of the decided cases. An instance of this is to be found in Arjun
Chandra Bhadra Vs. Kailas Chandra Das and Others, (2)). There, the Calcutta High Court had, inter alia, to deal with the question whether the
admission by the defendant of his signature to an instrument of mortgage was sufficient proof of the mortgage as against him. This was answered in
the negative. It was remarked by Richardson J. who delivered the leading opinion, that the execution of a document meant
something more than the mere signing by the party. It must certainly include delivery and J think it also includes signing in the presence of witnesses
where witnesses are necessary. In Section 71 for instance proving execution includes proof of the necessary formalities.
The learned Judge also contrasted Section 70 with Section 69 which deals with cases where no attesting witness is available, and which speaks of
the signature of the person executing the document'', thereby indicating that the mere signature of a person to the document does not amount to
due execution thereof.
Likewise, in Hare Krishna Panigrahi Vs. Jogneswar Panda and Others, Mukherjea J., who spoke for the Court, said that the word ''execution''
as used in the proviso to Section 68. Evidence Act, in the case of a mortgage bond which under law was to be attested ""means and includes not
only the signature of the executant but the whole series of acts or formalities which are necessary to give the document validity as a mortgage"" and
that this included attestation.
With respect, we think that these decisions embody the correct law. We are convinced that a document which needs to be attested under law
can be said to have been executed only when that formality has been gone through. There can be no execution of such an instrument without the
necessary number of witnesses having affixed their signatures in token of their having seen the executants sign the document.
Further the argument advanced on behalf of respondent is inadmissible for the reason that, when once the conclusion is reached that Section
59 is inapplicable to documents falling under Order XXI Rule 34, the question of attestation does not assume any importance. The validity of such
a document has to be judged in the light of the provisions of Order XXI Rule 34. Even otherwise, the language of that rule does not warrant such
an inference.
Even assuming that the expression ""execution"" does not imply attestation in all cases, when attestation is necessary, there can be little doubt that
in the context of Order XXI Rule 34 ''Execution'' comprehends attestation. That rule contains elaborate provision in regard to the execution of such
documents including the preparation of the draft by the decree-holder, the service of it upon the judgment-debtor, the consideration of the
objections and the mode in which the document is to no signed by the presiding officer or some other officer deputed by the Court. Apart from the
contents of Order XXI Rule 34, rules have also been framed by the High Court as to the mode of execution. (See Rules 151 to 153 of the Civil
Rules of Practice). Rule 153 recites that the concluding portion of the document should be in form No. 55 and that the seal of the court should also
be set to it. Form No. 55 is in these words:
In witness whereof C. D. the Judge of the Court of the District Munsif of on behalf of the above named A. B. and in pursuance of the decree
dated the day of and made in a suit in the said court, numbered of wherein the above named E. F. was plaintiff and the said A. B. was defendant
has set his hand and the seal of the said court this day of
This form provides also for the signature of the Court on behalf of the party and also for the affixture of the seal of the court. This Order 21
Rule 34 C.P.C. has devised a machinery for the making of documents by Court and it is most unlikely that the legislature would have failed to
make a provision in regard to attestation if its intention was to make the attestation essential for the validity of such documents. The whole
procedure to be adopted in that behalf has been prescribed by that rule, The reason behind the omission to insist upon the signature of the officer
concerned being attested by at least two witnesses is perceptible. When it is specifically stated in the document itself that the Judge or some other
responsible officer authorised to execute the instrument on his behalf has signed the document and the seal of the Court is affixed to it, it would be
superfluous to require two persons to indicate by their signature that they have seen the officer signing the documents.
That apart, Rule 34 itself furnishes intrinsic evidence that such a formality was not contemplated by it. The rule starts with the clause ''where a
decree is for the execution of a document''. Execution here does not mean merely the writing of that document and the signing of it by the party,
which by themselves would make a document an incomplete one where attestation is needed. This will be making the decree of the court
ineffectual because an incomplete document could not be registered and enforced. That could not have been the intendment of the rule. It is the
due execution including attestation that is within the contemplation of that rule. This idea is emphasized throughout the rule.
It is here that the significance of the introduction of sub-rule 6 in the Code of 1908 becomes apparent. There was divergence of judicial
opinion on the construction of Sections 261 and 262 which are the precursors of Order XXI Rule 34, several of the courts taking the view that the
documents executed by courts required registration, while some courts were of the opposite opinion having regard to the use of the word
''conveyance''. The preponderance of judicial authority was in favour of the former view. It is to give legislative recognition to this opinion that Sub-
rule 6 was added in the Code of 1908.
This change throws some light on the intention of the legislature, namely, that all the requisites that should be fulfilled in order to constitute a valid
document should be contained in this rule and that it should not be necessary to look beyond it. The introduction of Sub-rule 6, in our opinion, is
also a pointer in that direction and does not in any way establish that in spite of Order XXI Rule 34 the necessity to get attestation still exists as
urged by Sri B. V. Subrarnanyam for the respondents.
Nor does the replacement of the word ""document"" for ''conveyance'' establish the contention of the respondents. Presumably, the word
''conveyance'' was replaced by the word ''document'' for the reason that the former word might signify a document duly executed and registered.
The legislature might have thought that it is appropriate to use the word ''document'' when it was required to be registered. We are unable to see
what further significance it can have and the counsel for the respondents is not able to furnish any other reason. In our considered judgment,
attestation within the meaning of Section 59 of the T.P. Act is not requited in regard to such documents. It is unnecessary in this connection to
consider whether Section 59 of the T.P. Act provides a rule of substantive law or a rule regarding proof of the document.
We shall take up next the question whether even if such documents executed by courts are within the comprehension of Clause (a) of Section
2 of the T.P. Act, Section 59 is attracted to them. It should be borne in mind that Section 57, which occurs in Ch. III deals only with the
procedure to be adopted by a Court in regard to the discharge of encumbrances on sale. It concerns only with the procedure to be followed in
Courts, Thus, it is only the procedural section in Ch. III of the Act that is made applicable to transfers within the meaning of Clause (d) of Section
It is not unreasonable to think that even in regard to Ch. IV, it was only similar provisions, that is, those dealing with the procedure relating to
such transfers, that were intended to be applied and not sections like Section 59 in that Chapter which are unconcerned with the procedure. For
instance, that section could have no application to a transfer by operation of law. Further, all the sections of Ch. IV are not applicable to
transactions within the purview of Clause (d) of Section 2 but only Sections 59 and 85 - 90 the latter group of which have been subsequently
deleted that could have a bearing on such transfers. It is pertinent to remember that the CPC in force at that time did not contain any provision
governing auction sales held in execution of mortgage decrees. Therefore, provision had to be made in the T.P. Act in the shape of Sections 85 -
When Order XXI Rule 34 was introduced in the Code of 1908, the relevant sections of the T.P. Act were repealed. That being the position,
the only sections which applied to transfers are the sections mentioned above.
In this view of ours, we are reinforced by a judgment of the Allahabad High Court in Rai Indra Narain Vs. Mohammad Ismail and Others, ,
This is what the learned Judges said on the applicability of Ch. IV to Clause (d):
Doubtless the reference in Section 2(d) T.P. Act to Ch. IV is to those particular provisions in Sections 85 - 90.
This construction would be consistent with the meaning we have given to Clause (a) of that section.
It is cardinal rule of interpretation that the provisions of a statute should be so read as to harmonise them and to avoid irreconcilability. It follows
that documents executed by Courts are not governed by Section 59.
In this view, it is unnecessary to express any opinion on the question whether such transfers fall within Section 5 of the T.P. Act, namely,
whether they would amount to transfers by act of parties and whether a Court is constituted under Order XXI Rule 34 a statutory agent for the
judgment-debtor. In these circumstances, we hold that the mortgage in dispute was validly executed despite the non-attestation of the document
and that it was legally enforceable.
In the result, the appeal is allowed, the judgment of the lower appellate Court is set aside and that of the trial Court restored. The appellant will
have his costs throughout.
This appeal having been set down for being mentioned the Court made the following Order?
Time for redemption is six months from the date of our judgment.