Enforcing the Appearance of Executants and Witnesses under Sections 36 to 39 of the Registration Act, 1908: Summons, Service, Persons Exempt from Personal Appearance, and the Application of the Civil Procedure Code

Registration depends on the executant appearing and admitting execution. That gives a reluctant seller an obvious weapon: stay away, and the buyer's deed can never be registered. Sections 36 to 39 remove it. Where the appearance of an executant or a witness is desired and he will not come, the registering officer may issue a summons, have it served and enforced, and, where the person is genuinely unable to attend, go to him. Section 39 borrows the machinery of the Civil Procedure Code for summonses, commissions and the compelling of witnesses.

The four steps, who is exempt, and what happens instead

1. Summons and Service: Sections 36 and 37

Sections 36 and 37, Registration Act, 1908, in substance

36. If any person presenting a document or claiming under a document registered desires the appearance of a person whose presence or testimony is necessary for registration, and whose attendance cannot be procured without difficulty, the registering officer may, on payment of the proper process fee, issue a summons requiring him to appear at the registration office, either in person or by duly authorised agent.

37. The officer in charge of a police station, or any person present in court and deputed by the presiding officer, shall serve or cause to be served such summons, and shall be bound to carry out the directions given in that behalf.

Who may ask. The person presenting the document, or a person claiming under a document already registered, may ask for the summons.
Two conditions. The person's presence or testimony must be necessary for registration, and his attendance must not be obtainable without difficulty.
Process fee. The applicant pays for the summons, as in a civil court.
Agents. The summons may require attendance in person or by a duly authorised agent, where the Act allows appearance by an agent.

2. Persons Exempt from Personal Appearance: Section 38

Section 38, Registration Act, 1908, in substance

(1) (a) A person who by reason of bodily infirmity is unable without risk or serious inconvenience so to appear, (b) a person in jail under civil or criminal process, and (c) persons exempt by law from personal appearance in court, who are required to appear at a registration office, shall be examined at their residence or in the jail by the registering officer, or by a commission issued for the purpose.

(2) The provisions of the Code of Civil Procedure as to the examination of such persons shall apply so far as they are consistent with this Act.

Bodily infirmity must be such that appearance would involve risk or serious inconvenience, not mere difficulty.
Persons in jail are examined where they are, so that registration is not defeated by their confinement.
Exempt from personal appearance in court picks up the categories the Civil Procedure Code recognises, such as women who by custom ought not to be compelled to appear in public, and certain dignitaries.
Section 33(2) matches this, allowing a power of attorney to be authenticated at the residence or in the jail for the same three classes.
Section 31 is related but different. That section lets the officer attend a residence to accept a document on special cause shown; Section 38 deals with examining a person whose appearance is required.

3. The Civil Procedure Code Machinery: Section 39

Section 39 provides that the law in force for the time being as to summonses, commissions and compelling the attendance of witnesses, and as to their remuneration, shall, save as aforesaid and so far as it is consistent with this Act, apply to any summons or commission issued and any person summoned to appear under the Act. The registering officer is therefore not left to improvise. He uses the Code's rules on issue, service, substituted service, the consequences of non-attendance, the appointment of a commissioner and the payment of witness expenses, so far as they fit the registration process.

Borrowed from the Code	How it works here
Issue and form of summons	The registering officer issues it on payment of the process fee under Section 36
Service, including substituted service	Effected under Section 37 by the police officer in charge or a person deputed by the court
Commissions for examination	Used under Section 38 to examine a person at his residence or in jail
Compelling attendance of witnesses	Applies so far as consistent with the Act, with the remuneration and expenses rules

4. Why the Power Exists

Registration turns on admission of execution under Section 35, so a person who stays away can hold up the transaction.
The buyer has paid. Without these sections, a seller could take the price, decline to appear, and leave the buyer with an unregistered deed that Section 49 renders ineffective.
The alternative remedies are slower. A suit for specific performance and a decree under which the court executes the deed take years; a summons takes weeks.
But the power is limited to appearance. The officer can compel a person to come; he cannot compel him to admit execution, and on a denial Section 35(3) requires refusal, with the enquiry going to the Registrar under Section 73.

5. The Position Stated Shortly

Section 36: the registering officer may summon a person whose presence or testimony is necessary and whose attendance cannot be procured without difficulty.
Section 37: the police officer in charge of the station, or a person deputed by the court, serves and enforces the summons.
Section 38: a person unable to attend through bodily infirmity, a person in jail, and persons exempt from personal appearance in court are examined where they are, or on commission.
Section 33(2) allows a power of attorney to be authenticated in the same circumstances.
Section 39 applies the Civil Procedure Code rules on summonses, commissions, compelling witnesses and their expenses, so far as consistent.
The power compels appearance, not admission: a denial still leads to refusal under Section 35(3).