1. This appeal is directed against the order of the Joint Civil Judge, Senior Division, Surat ordering execution proceedings to proceed and appointing Mr. Sunil C. Bhukhanwala as the Commissioner to divide the house as per the terms of the decree.
2. The facts giving rise to this appeal briefly stated are as under:--
Special civil suit No. 268 of 1947 was field in the Court of the learned Civil Judge, Junior Division, Surat by the minor Thakorbhai alias Ishwarbhai Ichhubhai and four other minors against Bai Devi and others wherein the following reliefs were prayed for by the plaintiff :--
'(A) The properties mentioned at item Nos. 1 to 8 in Schedule B of the plaint may be given to us and the deft. No. 1 to 3;
(B) It may be held that after the death of the owners of the properties mentioned at item No . 1 restraining her from disposing the properties or causing the same to be disposed of, and directing her to preserve the properties.
(C) The meson profit in respect of item Nos. 1 to 8 in schedule B from July 1946 till the date of handing over the possession of the properties may be fixed and the same may be awarded from the defendants Nos. 1 to 3.
(D) The costs of this suit may be awarded from the deft. No. 1 to 3.'
There was compromise between the parties and a decree in terms of the compromise was passes by the Court . Subsequently, special darkhast No. 41 of 1964 was filed for executing the decree with regard to one house situated in Bhandari falia in the village admeasuring 80'-6' x 28'-9' as per the description given in schedule BY-LAW at serial No.2 thereof. Various contentions were taken by the defendants-judgment- debtors against execution of the said decree. They alleged that the court in which the Darkhast was filed had no jurisdiction to execute the decree; that no jurisdiction to execute the decree; that the compromise decree included some properties which were not the subject-matter of the suit and hence, the decree was invalid; that as the compromise decree which in effect was a decree for partition of immovable property of the family was not registered, it was inadmissible in law, Finally, it was contended that as defendant No.3 had died and as his legal representatives were not brought on record in the original decree, this decree could not be executed against them by the transferee Court. The learned Judge in a very elaborate judgment, after considering all the questions of fact and law, negatived these objections and ordered execution proceedings to proceed further. He also appointed a Commissioner to partition the property as per the terms of the decree. Against the said order of the learned Judge below, the present appeal has been preferred by the original judgment-debtors.
3. Mr. N. C. Shah, learned Advocate for the appellants has taken the same defences before me. He urged that (I) the compromise decree in question relates to some properties which were not the subject-matter of the suit and hence, the decree passed by the Court has gone beyond the provisions of Order 23, Rule 3, C.P. Code. The decree, therefore, is invalid and cannot be executed. (2) The decree in effect is a decree for partition of the suit property and as some of the immovable properties mentioned in the compromise decree were not the subject-matter of the suit, the decree was required to be compulsorily registered and as the same was not registered, it is inadmissible in law. (3) The application for execution of the decree against the legal representative of judgment-debtor No.3 who had died subsequent to the passing of the decree, should be given to the Court which originally passed the decree. Index Note the instant case, as the decree was passed by the learned Joint Civil Judge, Senior division, Surat, the present execution application filed in another Court was not tenable.
4. In order to appreciate the submission made by the learned Advocate for the appellants, it will been worthwhile to refer to the provisions of Order 23, Rule 3, C.P. Code. Rules 3 states-
'Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit.'
Thus , under the provisions of Rule 3, it would be open to the parties to enter into compromise pertaining to properties which may not even be the subject-matter of the suit. But the operative part of the decree passed by Court should relate only to the properties which were the subject-matter of the suit. In the instant case, the final decree in terms of the compromise which has been passed by the Court seems to include some properties which were not the subject-matter of the suit. The original plaint is not before me. But the consent decree seems to contain the whole of the plaint along with the schedules mentioning all the properties therein. the operative part of the decree shows that some properties which were not the subject-matter of the suit are also included therein. a question, therefore, which may arise for consideration in this appeal is-whether such a decree is invalid. as observed earlier, it would be open to the parties to enter into a compromise with regard to the properties which may not be the subject-matter of the suit. Under such circumstances, if the operative part of the decree while including whole of the subject matter of the compromise, also comprises some other properties it cannot be said that the decree would be invalid merely because it pertains to some properties which were not the subject matter of the suit. No. doubt, there is a divergence of opinion amongst various High Courts of this country on this point. The learned Judge below has taken into consideration this divergence of opinion amongst various High courts of Judge below has taken into consideration this divergence of opinion amongst various High courts. However, in vies of the fact that this point has already been decided by the Bombay High Court prior to 1060 and the said decision being binding on me, I need not consider the decisions of the other High Courts and with respect I agree with the Bombay view. In the case of Ambalal Chunthabhai Patel v. Somabhai Bakorbhai Patel, AIR 1944 Bom 46, it was observed as under:-
Under Order 23, Rule 3, the Court is bound to record as compromise in accordance with the terms 'so far as it relates to the suit.' But where the compromise is plainly outside the suit, it is open to the court to refuels to incorporate it in the decree. The expression 'so far as relates to the suit' in Order 23, rule 3 is wider than the expression, 'so far as relates to so much of the subject-matter of the suit as is dealt with by the compromise,' which occurred in Section 375 of the former code. Whether the compromise relates to the suit or not is a question which the Court which tries the suit has jurisdiction to decide. Even in cases where a part of the compromise does not, strictly speaking, relate to the suit and nevertheless the Court decides that it does relate to the suit and incorporates it into the operative portion and passes a decree in terms of it, the decree is not a nullity and not one passed without jurisdiction, but would be binding upon the parties to the decree, and its validity cannot be questioned in execution proceedings of that decree nor can any title derived under it be attacked. It is the duty of the court under O. 23, R.3 to see that although the whole of the compromise between the parties is recorded, the operative portion of the decree is confide to that part only which relates to the suit. But it does not necessarily follow that if the court does not strictly follow this direction, it is acting without jurisdiction'. In the instant case, therefore, even though the decree passed by the Court in terms of the compromise pertains to some properties which were not strictly the subject-matter of the suit, the said decree cannot be said to be a nullity. It is not for the executing Court to question the legality or validity of the said decree. In view of the decision of the Bombay High court, the learned Judge below was right in negativing the defendants' claim that the decree passed by the court was a nullity.
5. It was next contended by the learned Advocate for the appellants that as the decree had included some immovable properties of the value of more than rupees 100/- which were not the subject-matter of the suit, the whole decree required compulsory registration and as it was not registered, the decree was inadmissible in evidence. In this connection, the learned Advocate for the appellants referred to the provisions of Section 17 of the Indian Registration Act, Section 17(1) of the said Act describes documents which require compulsory registration. Sub-clause (vi) of sub-section (2) of Section 17 states as under:-
'Nothing in clauses (by-law) and (c) of sub section (1) applies to--
(vi) any decree or order of the Court except a decree or order expressed to be movable property other than that which is the subject-matter of the suit or proceeding.' thus, a decree passed in terms of a compromise comprising immovable property other than that which is the subject-matter of the suit or proceeding, is not exempted under sub-section (2) of Section 17. There is, therefore, some force in the submission made by the learned Advocate for the appellants that the decree which incorporated immovable properties other than that which was the subject matter of the suit, would be registered and if it was not so registered, it cannot be admissible in law, However, it may be noted that the decree or order of the court on a compromise comprising immovable properties which are the subject matter of the suit does not require to be registered. so far as the house in dispute, is conceded it was one of the properties mentioned in schedule BY-LAW attached to the plaint and therefore was a subject matter of the suit. It cannot, therefore, be said that the decree passed in terms of the compromise relating to that property required registration. Mr. shah has been unable to substantiate his say by reference to any case law that the whole decree would be vitiated. In my opinion, the decree passed in terms of the compromise relating to properties which were the subject-matter of the suit would be valid even if the said decree incorporated properties other than the subject-matter of the suit. The learned case of Supdu Laxmanshet v. Soniram Ragho : AIR1945Bom143 , where in it was held that- 'Although the decree in the compromise suit was silent regarding the lands outside the suit the agreement regarding the lands outside the suit the agreement regarding them was included in the compromise and the Court must have considered the compromise as a whole in granting leave under Order 32, rule 7 (1), Civil P.C. to effect the compromise on behalf of the minors. thus, the agreement about the lands outside the suit became embodied in the order of the Court and was exempt from registration under section 17(2)(vi), registration Act, as it stood before amendment of 1929 and was admissible in evidence though not registered.'
I fail to understand how this case would help the appellants. On the other hand, it helps the respondents. However, it could be explained away by the fact that the decision was arrived at with regard to the position of law as with regard to the position of law as it existed prior to the amendment of Section 17 of the Registration Act. In my opinion, therefore, the ratio of this case will not help the either side. However, as observed earlier, the decree passed by the Court under the terms of compromise comprising immovable property which was the subject-matter of the suit or proceeding would not require registration. thus, merely because the decree passed in terms of the compromise included some properties other than the subject-matter of the suit, the whole decree did not require compulsory registration and did not become invalid with regard to those properties which were the subject-matter of the suit for want of registration. At the most, if clause (vi) of sub-section (2) of Section 17 of the Act is construed strictly the result would be that the compromise decree with regard to the properties other than the subject-matter of the suit or proceeding would be inadmissible for want of registration. Index Note the instant case, the house in question was already one of the properties which were the subject-matter of the suit and hence, it cannot be said that merely because the decree is not registered, it would be inadmissible in law.
6. Lastly, the learned Advocate for the appellants urged that after the final decree was passed, defendant No.3 had died. In order to execute the decree against the legal representatives, an amendment should have been made in the original decree itself and this amendment should be made only the Court which passed the decree and as the execution application was given in a court other than the Court which had passed the decree, the present execution application was not tenable. The submission made by the learned Advocates has no substance. As observed by the learned Judge in paras 84 and 85 in his judgment, the execution application was filed in the same court of Civil Judge, Senior Division, surat and it cannot be said by any stretch of argument that the execution application filed in that Court even if heard by the Joint civil Judge, Senior Division or by the Joint Civil Judge, Junior Division could be said to be filed in different Court. Index Note the instant case, a notice was issued on the legal representatives after the death of defendant No.3. Therefore, the case of Manjubai Kashinath v. Pandurang Jayaram, reported in 36 Bom LR 443=(AIR 1934 Bom 215) cannot help the appellants, In my opinion, the learned Judge was right in holding that the execution application filed in holding that the execution application filed in his court was tenable. I see no reason to take a different view of the matter.
7. Index Note the result, the appeal fails and is dismissed with costs.
8. Appeal dismissed.