Skip to content


Krishna Hukumchand Gujar Vs. Madhav Dattatraya Kirpekar - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 680 of 1936
Judge
Reported inAIR1938Bom461; (1938)40BOMLR929
AppellantKrishna Hukumchand Gujar
RespondentMadhav Dattatraya Kirpekar
DispositionAppeal dismissed
Excerpt:
.....undertaking not to dispose of property till decision of suit- charge on some property under consent decree-execution of decree-whether decree requires registration.; plaintiff filed a suit to recover a specific amount of money against the defendant and applied for attachment before judgment of immovable property belonging to the latter. the attachment was provisionally granted, but at the final hearing of the attachment proceedings, the court raised it, on the judgment-debtor agreeing in writing that he will not dispose of the attached property by mortgage or sale till the suit was decided. a consent decree was taken in the suit by which a charge in respect of the whole amount due was created over the very property which was the subject of the previous attachment. a question..........contention was that the suit was to recover a specific amount of money and in that suit a consent decree was taken by which a charge was created over certain property, and that under section 17 (2) (vi) of the indian registration act the decree required to be registered inasmuch as exemption from registration was granted to decrees or orders of a court except those which were expressed to be made on a compromise and comprising immovable property other than that which was the subject-matter of the suit or proceeding, and as the property charged was not the subject-matter of the suit, the decree creating a charge on it required registration. it is quite true, as held in several cases, for example, ramayya v. rangaraju air [1937] mad. 504 and simbhuram beriwalla v......
Judgment:

Devatia, J.

1. These appeals arise in execution proceedings and involve a common question of law. They are preferred by the judgment-debtor against an order directing that the decree should be executed against certain property over which a charge had been created by consent of parties. The question of law was whether the decree required registration. The judgment-debtor's contention was that the suit was to recover a specific amount of money and in that suit a consent decree was taken by which a charge was created over certain property, and that under Section 17 (2) (vi) of the Indian Registration Act the decree required to be registered inasmuch as exemption from registration was granted to decrees or orders of a Court except those which were expressed to be made on a compromise and comprising immovable property other than that which was the subject-matter of the suit or proceeding, and as the property charged was not the subject-matter of the suit, the decree creating a charge on it required registration. It is quite true, as held in several cases, for example, Ramayya v. Rangaraju AIR [1937] Mad. 504 and Simbhuram Beriwalla v. Gulzarilal (1936) 40 C.W.N. 974 that if in a money suit a charge was created in the decree by consent over certain properties which are not the subject-matter of the suit or proceeding, it would require registration.

2. But that is not the only circumstance here. It appears that the plaintiff had applied for attachment before judgment of the very property which has been charged in the decree. That attachment was provisionally granted. At the time of the final hearing of the attachment proceedings, the judgment-debtor agreed in writing that he would not dispose of the immovable property, which was attached, by mortgage or sale till the suit was decided, and the plaintiffs stated that as the defendant had agreed to as above, they had no objection to the cancellation for the present of the order of attachment before judgment as requested by him. Thereupon the Court directed that the attachment should be raised. Now, there is authority for the proposition that if even in a, money suit certain property is attached before judgment and the attachment is continued till the date of the decree and a consent decree is taken by which the very property which had been attached is charged under the consent order, the decree would not require registration inasmuch as the property attached was the subject-matter of a proceeding, viz. the attachment proceeding, under Section 17 (2) (vi) of the Indian Registration Act. That has been laid down in Govindaswami v. Rasu I.L.R. (1934) Mad. 781. The judgment-debtor, however, contends that the attachment here was raised, and that no attachment was pending at the date when the consent decree was passed. It is clear, however, that although the Court directed that the attachment be raised, that order was passed because the judgment-debtor specifically agreed in writing, in other words he gave an undertaking, that he would not dispose of the immoveable property till the suit was decided. Now, in law an undertaking operates as an injunction : see Woodroffe on Injunctions, pp. 140 and 141, and Ken on Injunctions, p. 668, and that has also been recently laid down by our High Court in Chaturbhujdas v. Natvarlal : (1931)33BOMLR1109 . That being so, it must be taken that there was an injunction operating against the judgment-debtor with regard to this property till the suit was terminated, and when the consent decree was passed, the very property, with respect to which the undertaking was given and which should, therefore, be taken to be the subject-matter of an injunction of the Court, was charged. It is mentioned in the decree that a charge in respect of the whole amount due under the decree had been kept on all the properties which had been attached in the said suit as per special application. It was, therefore, clear in the minds of the parties that the property which had been attached before judgment and which subsequently became the subject-matter of the undertaking by the judgment-debtor was charged for the decretal amount. In my opinion, therefore, the property charged must be taken to be the subject-matter of the attachment proceeding at one stage and an injunction proceeding subsequently, and therefore, the principle of the ruling in Govindaswami v. Rasu would apply to the present case, with the result that the decree does not require registration.

3. I, therefore, agree with the lower Court that the property is liable to be attached and sold in execution without the decree being registered.

4. Both the appeals are, therefore, dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //