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Prafulla Chandra Deo Vs. Kasinath Misra and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 87 of 1976
Judge
Reported inAIR1977Ori198
ActsCode of Civil Procedure (CPC) , 1908 - Order 23, Rule 3; Registration Act, 1908 - Sections 17, 17(1) and 17(2)
AppellantPrafulla Chandra Deo
RespondentKasinath Misra and anr.
Appellant AdvocateA.B. Misra and ;P.N. Mohapatra, Advs.
Respondent AdvocateM.N. Das, ;P.C. Kar and ;D. Pathy, Advs.
DispositionAppeal dismissed
Cases Referred(Chandrasekhar Patel v. Ukiabati Patel). The
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........amount to any agreement requiring registration of the same under the registration act, and so the decree holder could execute the said decree for the realisation of his dues from the judgment debtor.2. mr. misra, the learned counsel for the appellant, urges the above-mentioned ground on which the execution of the decree was opposed in the court below by the appellant in this appeal. in this connection mr. misra contends that the decree in question has been drawn up on a compromise petition comprising immoveable property other than that which was the subject-matter of the suit, and hence that decree requires registration and in the absence of registration the said decree cannot be executed. the connected suit by the decree holder against the judgment debtor was money suit no. 1 of 1974.....
Judgment:

S. Acharya, J.

1. This appeal arises out of an order passed in M. J. C. No. 32 of 1975. M. J. C. No. 32/75 was registered on the petition of the judgment debtor, the appellant in this appeal, opposing the execution of the compromise decree passed in the connected money suit on the ground that Ac. 1.43 decimals of land, which was not the subject-matter of this suit, is included in the compromise decree, and as the said decree has not been registered the court has no jurisdiction to execute said decree. The court below held that the averment made in the compromise petition referring to Ac. 1.43 decimals of land was made only for the purpose of facilitating realisation of the decretal dues, and the said averment did not amount to any agreement requiring registration of the same under the Registration Act, and so the decree holder could execute the said decree for the realisation of his dues from the judgment debtor.

2. Mr. Misra, the learned counsel for the appellant, urges the above-mentioned ground on which the execution of the decree was opposed in the court below by the appellant in this appeal. In this connection Mr. Misra contends that the decree in question has been drawn up on a compromise petition comprising immoveable property other than that which was the subject-matter of the suit, and hence that decree requires registration and in the absence of registration the said decree cannot be executed. The connected suit by the decree holder against the judgment debtor was Money Suit No. 1 of 1974 for the realisation of Rs. 8,900/-. In that suit a compromise petition executed by both the parties was filed and the suit was decreed in accordance with the said compromise petition, and it was ordered that the compromise petition would form a part of the decree. In the last paragraph of the said compromise petition it is mentioned that Rs. 7000/-, which till the date of the said compromise decree remained to be paid by the judgment debtor to the decree holder, would be paid by the judgment debtor by 30-3-75, and if the said amount was not paid by that date, then Ac. 1.43 decimals of land out of plot No. 420 in Khata No. 12 of mouza Asuradhipa belonging to the judgment-debtor may be put to auction sale by the decree-holder for the realisation of his outstanding dues from the judgment-debtor. It is also stated therein that if the sale proceed of the said auction sale would be more than the amount payable to the decree holder then the balance amount would be paid to the judgment-debtor, but if the sale proceed falls short of the said amount then the decree holder would put other properties of the judgment-debtor to auction sale and would thus realise his entire dues from the judgment debtor. By the above averments regarding the aforesaid immoveable property no right, title or interest in that property was created, declared, assigned, limited or extinguished. By the said averment it was merely stipulated that the decree holder may at first put the said property to sale for the realisation of his balance decretal dues from the judgment debtor.

Mr. Misra concedes that in a case of this nature the decree-holder, even in the absence of the aforesaid averments in the compromise decree, could have put that and/or any other property of the judgment-debtor to sale. It is evident from the compromise petition that the said averment was put therein only to give advance information to the decree-holder about a particular plot belonging to the judgment-debtor which could immediately be put to auction sale for the realisation of the balance decretal dues. By the said averment it cannot be said that a compromise comprising immoveable property other than that which is the subject-matter of the suit or proceeding was thereby made. The words 'subject-matter of the suit or proceeding' in Section 17(2)(vi) of the Registration Act do not have the same implication as the words 'so far as it relates to the suit' in Order 23, Rule 3, C. P. C. The decree or orders expressed to be made on a compromise and comprising immoveable property otherwise than that which is the subject-matter of the suit or proceeding have to be registered if such decrees or orders come within the purview of Section 17(1) of the Registration Act. Compromise decrees making mention about such immoveable properties for some other purpose without thereby creating, declaring, assigning, limiting or extinguishing any right, title or interest in the said immoveable property or without thereby affecting such immoveable property in any of the several other manners provided under Section 17(1) of the Registration Act would not require registration. In this connection the decision reported in AIR 1970 Orissa 22 (Jogi Das v. Fakir Panda) may be seen. As stated above, the averment about the aforesaid immoveable property in the compromise decree in question is with the idea that the decree-holder may not have to make any probe or enquiry regarding the properties of the judgment-debtor to be put to sale for the purpose of realising the balance decretal dues. The said averment, as is evident from the compromise petition, is with the above idea and to enable the decree-holder to take immediate steps for the sale of the said property so that he would be able to realise his dues without any delay. Without that averment in the compromise decree the decree-holder could also have put that property or any other property of the judgment debtor to sale. The same thing has been stated in the compromise petition. By the said averments the property specified in the compromise petition is not affected in any manner so as to come within any of the several clauses in Section 17(1) of the Registration Act. On the above considerations I hold that this decree does not require registration under Section 17 of the Registration Act.

3. Mr. Misra further contends that the averment in the compromise petition regarding the sale of the aforesaid property is extraneous to the suit and amounts to an agreement between the parties relating to immoveable properties. So the decree-holder for the purpose of realising the balance decretal dues in accordance with the said agreement must institute a separate suit to enforce the terms of the decree for the realisation of his balance dues. In support of the above contention he has cited the decision reported in AIR 1977 Orissa 82 (Chandrasekhar Patel v. Ukiabati Patel). The decision in the said case was arrived at on facts entirely different from those of the present case. In that case the suit was instituted by the wife on behalf of herself and her daughters for realisation of maintenance from her husband. That suit was compromised on the terms that all the moveable and immoveable properties of the defendant would be divided into four equal shares; the defendant and his mother together would take one share; the second wife one share; his son one share; and the plaintiff would take the remaining share and she would have full title to the same in lieu of her claim for future maintenance. Further terms affecting the said immoveable properties were also included in the compromise petition filed in that case. Thus in the compromise petition, which formed the basis of the decree, moveable and immoveable properties, which were not the subject-matter of the suit, were not only included but also right, title or interest was created, declared, assigned, limited or extinguished in respect of these properties. Accordingly, it was held in that case that the terms of compromise regarding partition of the moveable and immoveable properties of the defendant, as embodied in the said compromise petition did not at all relate to the suit and so the said agreement in the decree could only be enforced by a separate suit and the decree could not be executed as such. By the said decree agreement relating to properties which were not the subject-matter of the suit was made directly affecting the said properties in the manner provided in Section 17(1)(b). Hence the said decision. In this case, as stated above, the averment regarding the aforesaid immoveable property does not in any manner make any agreement affecting any property in the aforesaid manner or in any other manner coming within Section 17(1) of the Registration Act. The said averment was made only for the purpose of facilitating the execution of the decree by supplying advance information about a property which was available to be sold for the purpose of realising the balance decretal dues. It cannot be said that thereby an agreement regarding that property was made so as to affect that property in the aforesaid manner. The statement regarding immoveable property in the decree in question is merely a reiteration of the decree-holder's legal right to put the judgment-debtor's property to sale. That being so, it is not necessary for the decree-holder to institute a separate suit to enforce the terms of the said decree, and the said decree can be executed straightway in accordance with law without instituting a separate suit on that decree.

4. The execution of the said decree is not opposed on any other ground.

5. I do not find any merit in this appeal and it is accordingly dismissed with costs.


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