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Env Coord (.)     22 September 2021

Special power of attorney for court appearance in civil case

A decree-holder has filed an execution petition in a local civil court in Maharashtra for execution of a money decree. Decree-Holder is now senior-citizen and having health ailments to personally appear in the said execution proceedings before the Court, he now wants to give power of attorney (PoA) to his son to appear and represent on his behalf. Hence, following queries arises for proceeding further in the said matter:

1. Can Special Power of Attorney be executed by Decree-Holder in favour of his son for appearance in the said execution case pending before Civil Court ?

2. How much  stamp duty is applicable for execution a Special Power of Attorney in this matter ?

3. Is the said Power of Attorney required to registered by presenting the same before 'Registrar of Assurances' or notarization of PoA by a 'Notary Public' sufficient for acceptance by the Court ?

Kindly advise.

Best Regards,

Vishal Saha


 5 Replies

Shubham Bhardwaj (Advocate)     22 September 2021

Dear Mr Vishal, The answer to your query is as under:- 1. Yes, he can authorize his son to appear on his behalf through an SPA. 2. You will have to check with local tehsil office. All states have different stamp duties for documents. 3. SPA for appearance in court is not a compulsorily registrable document. So even a notarized SPA would be completely valid. But States are empowered to make amendment in Registration Act thus you must confirm once with the local estate office. Regards Shubham Bhardwaj (Advocate) District & Session Court, Chandigarh Punjab & Haryana High Court, at Chandigarh Disclaimer:- Opinion is only for guidance.
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Dr. J C Vashista (Advocate and Legal Consultant)     23 September 2021

I endorse advise of expert Mr. Shubham Bhardwaj. SPA / PoA has to be executed and registered. What is your concern / locus standi Mr. Vishal Saha ?

Env Coord (.)     23 September 2021

I am decree-holder's son. Some local lawyers are saying, that for court case Special PoA must be notarized by 'notary public' and no requirement for registration is needed (Registration of Spl. PoA u/s 17 of Regst. Act 1908). Whereas some are of opinion that registration is required otherwise Court won't accept the Spl. PoA for court case. Hence, in order to clarify the correct option w.r.t. Spl. PoA for court matters, I asked this question on this forum.

Shubham Bhardwaj (Advocate)     23 September 2021

Dear Sir, In order to clarify further, please note the following:- The list of instruments which are compulsorily registrable are provided under Section 17 of the Registration Act 1908. The List of documents which are optional for registration is provided under Section 18 of the Registration Act. Section 18(f) states that document which are not mentioned in Section 17 are optional for registration. There is no entry in entire Section 17 to make Special POA for court appearance as compulsorily registrable. Thus, in my considered opinion 'NO REGISTRATION IS REQUIRED'. Regards Shubham Bhardwaj
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P. Venu (Advocate)     23 September 2021

In the given facts, the Power of Attorney is not required to registered. Please see Section 17 of the Registration Act as amended by the Registration (Maharashtra Amendment) Act, 2010 - In section 17 of the principal Act, in sub-section (1),–– (i) for clause (d), the following clause shall be substituted, namely:–– “(d) leases of immovable property for any term: Provided that in case where the lease is for a term less than one year, the State Government may, by notification, specify the amounts of annual rent, . money advance, payment in lieu of rent or premium which shall not be less than fifty thousand rupees per month;”; (ii) after clause (e) and before the proviso thereof, the following clauses shall be inserted, namely:–– “(f) any document which purports or operates to effect any contract for sale of any immovable property including developer’s or promoter’s agreement by whatever name called for development of any property or construction of structure; (g) agreement relating to the deposit of title deeds, where such deposit has been made by way of security for the repayment of a loan or an existing or future debt, except where it is filed under section 89; (h) sale certificate issued by any competent officer or authority under any Central Act or State Act for the time being in force; (i) power of attorney authorising transfer of immovable property with or without consideration; (j) instruments in respect of amalgamation, reconstruction, merger and demerger of companies and transfer of immovable property at the time of formation of companies pursuant to any order made by the High Court under the Companies Act, 1956; (k) instruments which purport or operate to create, declare, assign, limit, extinguish any right, title or interest whether vested or contingent in immovable property pursuant to any decree or order or any award made by a court.”; (iii) in sub-section (2), clause (xii) and the Explanation thereunder shall be omitted; (iv) for sub-section (3), the following sub-section shall be substituted, namely:— “(3) Authorities to adopt a son or a daughter and not conferred by a Will, shall also be registered.”.
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