Veerakutty Koundan and Another vs Ramasami Asari and Others

The first point argued! before us is that, because the plaintiff''s mortgage was registered after the 3rd defendant had instituted his suit and

obtained an order of attachment against the property on which he held, a prior but unregistered mortgage, the registration, though made within the

time allowed by law, was invalid and Section 47 of the Indian Registration Act did not apply. Section 47 of the Registration Act says ""that a

registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or

made, and not from the time of its registration,"" and it is absolutely definite. The result of that is that the mortgage of the plaintiff operates as from

the date of the execution. It was executed before the institution of the suit by the 3rd defendant on his unregistered mortgage. That being so, the

plaintiff''s mortgage has priority over the mortgage of the 3rd defendant.

Then, it is contended that Section 50 of the Registration Act says that though the plaintiff''s mortgage may have priority over the mortgage of the

3rd defendant, it would be infructuous against him because he obtained a decree on his unregistered mortgage. But the plaintiff was not a party to

that suit and it is difficult to understand how the decree would bind him.

Another question is raised before us and that is, because the 3rd defendant''s mortgage failed, the plaintiff must pay compensation to him. Such a

contention does not require any answer. The second appeal is dismissed. The 1st respondent is entitled to costs in this Court and the costs in the

lower Appellate Court.

The memorandum of cross-objections is allowed with costs.