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Khushal Singh Vs. Devinder Nath and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1920 of 1981
Judge
Reported inAIR1983P& H151
ActsRegistration Act - Sections 17(2); Code of Civil Procedure (CPC), 1908 - Sections 35-A
AppellantKhushal Singh
RespondentDevinder Nath and ors.
Cases Referred and Bawa Singh v. Babu Singh
Excerpt:
.....transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - later on it has been observed therein that if the phrase had been 'suit decreed fin terms of the compromise or suit dismissed in terms of the compromise',it might well be argued that the particular compromise in question had been embodied in the other or the decree. under these circumstances reliance was placed on fazal rasul khan's case (supra). both these cases, as stated above, are clearly distinguishable, and in way..........fazal rasul khan's case (air 1944 lah 394)(supra) the decree was passed in the following terms :--'suit compromised and accordingly dismissed.'therefore, it was observed therein hat no particular compromise is referred to but it is merely said that the parties have compromised and the suit was, therefore, dismissed. later on it has been observed therein that if the phrase had been 'suit decreed fin terms of the compromise or suit dismissed in terms of the compromise', it might well be argued that the particular compromise in question had been embodied in the other or the decree. thus, the distinction is very much evident. as regards the present case, here the decree as reproduced above does refer to the compromise and therefore the compromise could be regarded as embodied in the decree.....
Judgment:

1. This Second Appeal has been filed on behalf of the defendant-appellant against whom the plaintiffs' suit for redemption of the suit land was decreed by both the Courts below.

2. One Mahinder Nath sold the suit land to the defendant-appellant Khushal Singh on 12th June, 1964 for a sum of Rs. 7,500/- To challenge the said sale a suit for pre-emption was filed on behalf of the plaintiff-respondents on 16th July, 1965. Therein a compromise was arrived at between the parties and in view of the same, compromise decree Ext. P. 3 dated 9th August, 1965 was passed in that suit. According to the terms of the compromise. Khushal Singh, know appellant, who was defendant in that suit was to remain in possession of the suit land as mortgagee for eight years and thereafter the land could be redeemed by the mortgagors on payment of Rs. 7,500/- . On the basis of the said decree, mutation No. 730 was sanctioned on 29th August, 1970 vide which the sale stood converted into mortgagee in the aforesaid terms. Another mutation No. P. 10 was also sanctioned treating the parties to be mortgagors and mortgagees in terms of the compromise. Thus after the expiry of the said term of 8 years, the present suit was filed for redemption on 2nd Aug., 1979 on payment of Rs. 7,500/- The suit was resisted on behalf of he defendant-appellant on the ground that the suit does not lie as there is no relationship of mortgagor and mortgagee between the parties and the compromise was not binding of the parties, the trial Court framed the following issues :--

'1. Whether Mohinder Nath is not competent to act as next friend of minor plaintiff Ravinder Nath O. P. D.

2. Whether the suit does not lie as there is no relationship of mortgagor and mortgagee between he parties ?

3. If issue No. 2 is not proved, whether the plaintiffs are entitled to he redemption of the suit land. If so on what terms O. P. P.

4. Whether the compromise as alleged in para 3 of the written statement is not binding upon the defendant O. P. P.

4-A Whether the plaintiffs are entitled to special costs u/s. 35A, C. P. C. O. P. P.

5. Relief.'

All the issues were decided in favour of the plaintiffs except issue No. 4-A and as a result of these findings. The plaintiffs' suit was decreed by way of redemption on payment of Rs. 7,500/- . In appeal filed on behalf of the defendant, the learned Additional District Judge affirmed the findings of the trial Court on all the issues and thus maintained the decree of the trial Court passed in favour of the plaintiffs. Dissatisfied with the same, the defendant has come up in second appeal in this Court.

3. The only point urged in this case is that since the compromise entered into between the parties was never got registered, therefore, that was not enforceable between the parties. According to the learned counsel for the appellant, the terms of the compromise were never incorporated in the decree. As a matter of fact, according to the earned counsel no decree was passed on the basis of the compromise and as such the plaintiffs' suit should have been dismissed. The argument proceeded that in case the terms of the compromise were never incorporated in the decree itself,. Then exception under clause (vi) f sub-section (2) of. 17 of the Registration Act could not be invoked. In support of his contention he strongly relied upon Fazal Rasul Khan v. Mohd-UI-Nisa, AIR 1944 Lah 394; Umrao Singh v. Nikku Mal Gupta, AIR 1966 Punj 412 and Satish Kumar v. Surinder Kumar, AIR 1970 SC 833.

4. On the other hand, the learned counsel for the respondents relied upon Kishan Singh v. Pritam Singh, AIR 1938 Lah 737, and Bawa Singh v. Babu Singh, 1978 Rev LR 534 and also distinguished the authorities relied upon by the learned counsel for the appellant.

5. The decree dated 9th Aug., j1965 Exhibit P. 3 subsequently got registered on 7th Dec., 1965 was in the following terms :--

'It is ordered that in view of the compromise statement of the parties, the suit is dismissed. Parties to bear their own costs.'

In Fazal Rasul Khan's case (AIR 1944 Lah 394)(supra) the decree was passed in the following terms :--

'Suit compromised and accordingly dismissed.'

Therefore, it was observed therein hat no particular compromise is referred to but it is merely said that the parties have compromised and the suit was, therefore, dismissed. Later on it has been observed therein that if the phrase had been 'suit decreed fin terms of the compromise or suit dismissed in terms of the compromise', it might well be argued that the particular compromise in question had been embodied in the other or the decree. Thus, the distinction is very much evident. As regards the present case, here the decree as reproduced above does refer to the compromise and therefore the compromise could be regarded as embodied in the decree is has been held in the said case (supra). As regards Umrao Singh's case (AIR 1966 Punj 412)(supra) it was a case of execution in which the parties had compromise. Under these circumstances reliance was placed on Fazal Rasul Khan's case (supra). Both these cases, as stated above, are clearly distinguishable, and in way the former rather helps the respondent. Apart from that after the compromise between the parties. The mutation was sanctioned on the basis of the said decree and consequently entries were made in the subsequent Jamabandis as well Thus, the said compromise did not require registration. Moreover, it was duly acted upon by the parties. As stated earlier, even the decree itself was got registered on 7th Dec., 1965 with the Sub-Registrar. Sub-clause (vi), sub-section (2) of S. 17 of the Registration Act provides that any decree or order of a Court did not require registration except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceedings. Admittedly, the suit property was the same which was he subject matter of the compromise in the suit and for which compromise was entered into between the parties. Thus, the decree Ext. P. 3 is fully covered by the said exception. Once a decree or an order based on a compromise referred to in the judgment or decree is deemed to have embodied the compromise also then that shall also be exempted from registration as has been held in Fazal Rasul khan's case (AIR 1944 Lah 394)(supra).

6. As a result of the above discussion, this appeal fails and is dismissed with no order as to costs.

7. Appeal dismissed.


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