Holding

The period during which the award was in the court's custody and subject to the injunction is excluded from the limitation period, so the award was presented within the permissible time for registration.

Summary

The appellants and respondent entered into a partition agreement which was referred to arbitration; the arbitrators rendered an award on 28 November 1977. The award was filed in court on 28 January 1978 and an interim injunction was issued on 26 July 1978, keeping the award in the court's custody until the injunction was vacated on 20 December 1982. The award was finally returned to the arbitrators on 24 November 1983 and presented for registration on 25 November 1983, where it was registered. The High Court later quashed the registration, holding that the award was presented beyond the statutory limitation period. The Supreme Court held that the period during which the award was in court custody and subject to the injunction must be excluded from the limitation period under Section 15 of the Limitation Act, and that the combined effect of Sections 23 and 25 of the Registration Act allows up to eight months for registration. Consequently, the award was within the permissible time and the High Court's order was set aside. The appeal was allowed and the registration order was restored.

Issues considered

What period, if any, should be excluded from the limitation period for registering an arbitrator's award under the Registration Act, 1908?
Does the period during which judicial proceedings, including an injunction, are pending bar the presentation of the award for registration?
How do Sections 23 and 25 of the Registration Act, 1908, interact to determine the total permissible period for registration?
Must an award affecting immovable property be registered to be enforceable?

Legislation cited

Subjects

arbitration awardregistrationlimitation periodinjunctionimmovable propertyRegistration Act 1908Limitation Act 1963civil procedureequitable maxims

Judgment

A , RAJ KUMAR DEY AND OTHERS
v,
TARAPADA DEY AND OTHERS

SEPTEMBER 14'. 1987

B [SABYASACHI MUKHARJI AND G.L. OZA, JJ.]

Arbitration Act, 1940: Sections 11 and 14-Award affecting
immovable property-Registration of-Period of limitation-What is--
Period during which judicial proceedings pending-Whether be
excluded.
c
Registration Act, 1908: Sections 23 and 25-Arbitrator's award-
Registration of-period of /imitation-What is.

D
Limitation Act, 1963: Section 15-Period during which judicial
proceedings pending-Whether to be excluded.

An agreement was entered into by appellants Nos. 1 to 4 and
E respondent No. 1 regarding partition of joint movable and immovable
properties. A dispute arose relating to certain properties, which was
referred to arbitration. The arbitrators made their award on November
28, 1977, which was filed by them before the Sub-Judge on January 28,
1978, pursuant to the application made by appellants Nos. 1 to 4 under
s. 14 of the Act.
F

On December I, 1977, respondent No. 1 had filed an application
under s. 11 of the Arbitration Act, 1940, before the Munsif, who passed
an injunction order on July 26, 1978, for maintaining status quo till the
disposal of the said application. On the application made by the
G arbitrators on 14th August, 1978, the Sub-Judge ordered on September
2, 1978, the returning back of the award to the arbitrators, to enable
them to present the same for registration before the Sub-Registrar. The
High Court in appeal set aside the above order holding that during the J_
subsistence of the interim injunction to maintain status quo, the
arbitrators could not take back the award for presenting it for registra-
H lion, and ordered that the arbitrators' application be kept pending and
118
R .K.DEY v. TARAPADA DEY 119

heard when the injunction order was vacated. A
,I'
On December 20, 1982 the Munsif dismissed the case of the
respondent No, land that interim injunction ipso fai;to.was·discharged.
Thereafter, the Subordinate Judge dismissed the application of the
arbitrators for returning of the award, holding that limitation for
registration of the award had already expired. The High Court, in appeal, B
directed the Subordinate Judge to return back the award, holding that
y it was the Registrar and not the Sub-Judge who could determine the
question of limitation for the purpose of registration of the award. On
November 24, 1983, the arbitrators got back the award and 'the next
day presented it before the Sub-Registrar and the award was registered
the same day.
c
) The High Court on a petition by respondent No. 1 challenging the
1 registration sent back the award to the Sub-Registrar to re-consider the
question of limitation. The Sub-Registrar found that the award was
presented within time as the period during which the judicial proceed-
ings were pending, namely, 28th January, 1978 to 24th November, D
1983, should be excluded in view of s. 15 of the Limitation Act. Against
the aforesaid decision, respondent No. 1 filed an application before the
High Court which, by the impugned order, quashed the registration
and held that the award had been presented for registration beyond
time.
·~{ E
In the appeal by special leave, the validity and propriety of the
aforesaid order was challenged.

Allowing the appeal by special leave, this Court,

HELD: Under the Registration Act, 1908, the limitation period F
for registration is four months from the date of execution and in cases
\ where the delay in presentation does not exceed four months, such
document could be accepted for registration, on payment of fine. The
cumulative effect of sections 23 and 25 read together is that a total
period of eight months is available for registration, if the conditions
requisite are fulfilled. [122G; 123A-B] G

In the instant case, the award was made on November 28, 1977
and before the expiry of four months, it was filed in the court pursuant
to the order of the court. During the period from July 26, 1978 to
December 20 ' 1982 ' there was subsisting injunction preventing the
arbitrators from taking any steps. Furthermore, as the award was .m H
120 SUPREME COURT REPORTS (1988] 1 S.C.R.

A the custody of the court from January 28, 1978 till the return of the
award to the arbitrators on November 24, 1983, the arbitrators or the
parties could not have presented the award for its registration during
that time. The award was presented before the Sub-Registrar on
November 25, 1983 the very next day of getting possession of the award
from the court. The Sub-Registrar, pursuant to the order of the High
B Court, found that the award was presented within time as the period
during which judicial proceedings were pending from January 28, 1978
to November 24, 1983 should be excluded in view of the principle laid
down ins. IS of the Act. [123G-H; 124A,D-E]

The High Court was, therefore, wrong in holding that the only
C period which should be excluded was from 26th January, 1978, the date
of the order of the Munsif directing maintenance of status quo till 20th I
December, 1982, the date when the interim injunction was vacated. The
award was still in the custody of the court and there was ample evidence
that the Arbitrators had tried to obtain the custody of the award which
)
the court declined to give to them. [124E-G I
D
The two legal maxims LEX NON COGIT AU IMPOSSIBILIA,
and ACTUS CURIAE NEMINEM GRAVABIT-the law does not
compel a man to do that which he cannot possibly perform, and an act of
the Court shall prejudice no man-would apply with full vigour in the
facts of this case. [I24C]
E
Nityananda M. Joshi and others v. Life Insurance Corporation of
India and others, [1970] I S.C.R. 396, distinguished.

M. Venkataratnam v. M. Chelamayya, A.I.R. 1967 Andhra
Pradesh 257 referred to.
F
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2224 }
of 1987.

From the Judgment and Order dated 19.6.1986 of the Calcutta
High Court in Civil Order No. 2278 of 1985.
G
S.N. Kacker and Sukumar Ghosh for the Appellants.

A.K. Sen, D.N. Mukherji, Ranjan Choudhary, N.R. Choudhary
for the Respondents.

H The Judgment of the Court was delivered by
J
R .K.DEY v. TARAPADA DEV [MUKHARJI, J.[ 121

f' SABYASACHI MUKHARJI, J. Special leave granted. A

This appeal is directed against the judgment l!nd order of the
High Court of Calcutta dated 19th of June, 1986 in Civil Order
No. 2278 of 1985. On or about 11th of June, 1977 an unregistered deed
of agreement between the four brothers being the appellants Nos. 1 to
4 and their eldest brother, respondent No 1 was entered into regard- B
ing partition of joint movable and immovable properties and the same
y were referred to three arbitrators", namely, three appellants Nos. 5, 6
and 7 herein. On or about 2nd of July, 1977 the same agreement was
re-written on a fresh stamp paper and the same was registered by
which the abovenamed arbitrators were given the option to take assis-
tance of one, two or more persons .. The dispute related to certain C
properties among the brothers in Chinsurah the district of Hooghly in
the State of West Bengal. The three arbitrators took the assist.ance of
appellant No. 8 and he functioned and acted as one of the arbitrators.

On or about November 28, 1971-the arbitrators explained their
award to the parties and made and signed the award. On or about !st D
December, 1977 the eldest brother filed;m.applicationunder section
11 of the Arbitration Act, 1940 (hereinafter called 'the Act') before
the learned Munsif, Arambagh being Misc. Case No. 74 of 1977. The
appellants Nos. l to 4 filed an application under section 14 of the Act
before the learned Sub Judge, Hooghly at Chinsurah praying for a
direction on the arbitrator to file the award in the court in Misc. Case E
No. 28 of 1977. The arbitrators filed the award before the learned
Sub-Judge Hooghly at Chinsurah on 28th of January, 1978. On 26th of
July, 1978 the learned Munsif, Arambagh ordered interim injunction
on the parties including the arbitrators to maintain status quo till the
disposal of Misc. Case No. 74 of 1977 initiated by the appellant No. I.
On 14th of August, 1978 the arbitrators made an application before F

\ the learned Sub Judge, Hooghly at Chinsurah to return back the award
to enable them to present the same before the Sub-Registrar fqr regist-
ration,. On 2nd September, 1978, the learned Sub Judge fixed the
hearing of the arbitrators' application to return the award to them. In
January, 1980 the arbitrators' application was heard and the learned
Sub Judge ordered return of the award to the arbitrators to enable G
them to present the same for registration.

The High Court of Calcutta in Civil Rule No. 621of1980 on 6th
March, 1981 set aside the aforesaid order of the learned Sub Judge
holding that during the subsistence of the interim injunction order on
the arbitrators to maintain status quo the arbitrators could not take H
122 SUPREME COURT REPORTS [ 1988] 1 S.C.R.

A back the award for presenting the same for registration. The High
Court ordered that the arbitrators' application dated 14th of August,
1978 should be kept pending and be heard when the injunction order
was vacated. On 20th December, 1982 the learned Munsif, Arambagh
dismissed Misc. Case No. 74 of 1977 and the interim injunction order
ipso facto was discharged. The arbitrators, therefore, renewed their
B prayer before the learned Sub Judge to return the award. On 25th of
February, 1983 the learned Sub Judge dismissed the arbitrators' appli-
cation and did not direct return of the award holding that the limita-
tion for the registration of the award had already expired. The High
Court in Civil Order No. 589 of 1983 on 19th of September, 1983
directed the learned Sub Judge to return back the award to the
C arbitrators holding that it was the Registrar and not the Sub Judge who
could determine the question of limitation for the purpose of registra-
tion of the award. The learned Sub Judge, Hooghly at Chinsurah on
23rd of November, 1983 ordered returning back of the award to the
arbitrators. On 24th of November, 1983 the arbitrators got back the
- award from the court. On 25th November, 1983 i.e., the very next day
D the arbitrators presented the award before the Sub-Registrar,
Arambagh for registration. The Sub-Registrar, Arambagh on 25th of
November, 1983 registered the award. The High Court in Civil Order
No. 9696(W) of 1984 on 24th July, 1984 had sent back the award to the
Sub-Registrar to reconsider the question of limitation and found that
the award was presented within time as the period during which the
E judicial proceedings were pending, namely, 28th of January, 1978 to
24th of November, 1983 should be excluded in view of the principle
laid down under section 15 of the Limitation Act. On 19th June, 1986
by the judgment and order impugned the High Court quashed the
registration under Article 227 of the Constitution holding that the
award had been presented for registration beyond time. It is the valid-
F ity and propriety of that order which is under challenge in this appeal.

The limitation period for registration is four months from the
>
date of its execution. The award was made on 28th of November, 1977
and it was presented for registration to the Sub-Registrar on 25th of
November, 1983. Section 23 of the Registration Act, 1908 (hereinafter
G called 'the Registration Act') stipulates that the time for registration is
four months from the date of its execution. Section 25( 1) of the Regis-
tration Act provides that if, owing to urgent necessity or unavoidable
accident, any document executed, or copy of a decree or order made, J
is not presented for registration till after the expiration of the time
hereinbefore prescribed, the Registrar, in cases where the delay in
H presentation does not exceed four months, may direct that, on pay-
R .K.DEY v. TARAPADA DEY (MUKHARJI, J.) 123

r ment of a fine not exceeding ten times the amount of the proper
registration-fee, such document shall be accepted for registration.
Sub-section (2) of section 25 provides that any application for such
A

direction may be lodged with a Sub-Registrar, who shall forward the
same to the Registrar. Therefore the cumulative effect of sections 23
and 25 read together is that total period of eight months is available for
registration if the conditions are fulfilled. The High Court had held B
that in this case the award has been registered after six years and as
such was beyond time. It was held before the High Court that no
y
registration was permissible beyond the period fixed under section 25
read with section 23 of the Registration Act and any registration
beyond such period would be void. But in this case admittedly the
award was in the court of the learned Munsif from 28th of January,
c
)
_\
1978 to 24th of November, 1983. Therefore, this period, that is to say,
from 28th January 1978 to 24th November, 1983 the award was in
court and this was manifest from the order in Misc. Case No. 28 of
1977. The arbitrators had made an application on or about 14th
August 1974 for return of the award but that was not done. Further-
more, there was an injunction on 26th July, 1978 which was only D
vacated on 20th December, 1982.

We have to bear in mind two maxims of equity which are well
settled, namely, "ACTUS CURIAE NEMINEM GRAVABIT''-An
act of the Court shall prejudice no man. In Broom's Legal Maxims,
.'( 10th edition, 1939 at page 73 this maxim is explained that !bis maxim E
was founded upon justice and good sense; and afforded a safe and
certain guide for the administration of the law. The above maxim
should, ~owever, be applied with caution. The other maxim is "LEX
NON COGIT AD IMPOSSIBILIA" (Broom's Legal Maxims-P.
162)-The law does not compel a man to do that which he cannot
possibly perform. The law itself and the administration of it, said Sir F
W. Scott, with reference to an alleged infraction of the revenue laws,
\ must yield to that to which everything must bend, to necessity; the law,
in its most positive and peremptory injunctions, is understood to dis-
claim, as it does in its general aphorisms, all intention of compelling
impossibilities, and the administration of laws must adopt that general
exception in the consideration of all particular cases. G

In this case indisputably during the period from 26th of July,
..... 1978 to 20th December, 1982 there was subsisting injunction prevent-
ing the arbitrators from taking any steps. Furthermore, as noted
before the award was in the custody of tbe court, that is to say, 28th of
January, 1978 till the return of the award to the arbitrators on 24th of H
124 SUPREME COURT REPORTS [1988) 1 S.C.R.

A November, 1983, the arbitrators or the parties could not have pre-
sented the award for its registration during that time. The award as we
have noted before was made on 28th of November, 1977 and before
the expiry of the four months from 28th November, 1977, the award
was filed in the court pursuant to the order of the court. It was argued
that the order made by the court directing the arbitrators to keep the
B award in the custody of the court was wrong and without jurisdiction,
but no arbitrator could be compelled to disobey the order of the court
and if in compliance or obedience with court of doubtful jurisdiction,
he could not take back the award from the custody of the court to take
any further steps for its registration then it cannot be said that he has
failed to get the award registered as the law required. The aforesaid
C two legal maxims-the law does not compel a man to do that which he
cannot possibly perform and an act of the Court shall prejudice no man
would, apply with full vigour in the facts of this case and if that is the
position then the award as we have noted before was presented before
the Sub-Registrar, Arambagh on 25th November, 1983 the very next
one day of getting possession of the award from the court. The Sub-
D Registrar pursuant to the order of the High Court on 24th of June,
1985 found that the award was presented within time as the period
during which the judicial proceedings were pending that is to say, from
28th of January, 1978 to 24th of November, 1983 should be excluded in
view of the principle laid down in section 15 of the Limitation Act,
1963. The High Court, therefore, in our opinion, was wrong in holding
E that the only period which should be excluded was from 26th July,
1978 till 20th December, 1982. We are unable to accept this position.
26th July, 1978 was the date of the order of the learned Munsif direct-
ing maintenance of status quo and 20th of December, 1982 was the
date when the interim injunction was vacated, but still the award was
in the custody of the court and there is ample evidence as it would
f appear from the narration of events hereinbefore made that the
arbitrators had tried to obtain the custody of the award which the court
declined to give to them. The principles enunciated by this Court in
Nityananda M. Joshi and others v. Life Insurance Corporation of India
and others, [ 1970] 1 S.C.R. 396 would have no application to the facts
of this case.
G
It was urged before us that an award affecting the immovable
• properties which was not registered and which was made outside the
court could not form the basis of an award and an unregistered award,
in other words could not form the basis of the award. We are unable to
accept that position. There is no dispute to the proposition that an
H award affecting immovable properties as in the instant case should be
R .K.DEY v. TARAPADA DEY (MUKHARJI, J.J 125

registered. It is therefore, not necessary to discuss in detail the ratio of A
the decision of the Full Bench of the Andhra Pradesh High Coun in
M. Venkataratnam v. M. Chelamayya, A.LR. 1967 Andhra Pradesh
257.

In the aforesaid view of the matter the judgment and order of the
High Court cannot be sustained and are set aside. The appeal is al- B
lowed and the order of the Sub-Registrar, Arambagh dated 24th of
June, 1985 is restored. In the facts and circumstances of the case,
however, the parties are directed to pay and bear their own costs.

N.P.V . Appeal allowed.

. -'(

-

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'.

....