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Govindasamy Mudaliar Vs. Rasu Mudaliar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in156Ind.Cas.791
AppellantGovindasamy Mudaliar
RespondentRasu Mudaliar
Cases ReferredIn Gobinda Chandra Pal v. Dwarka Nath Pal
Excerpt:
registration act (xvi of 1908), section 17(2)(vi) - compromise decree--decree creating charge over properties attached before judgment--whether compulsorily registrable--application for attachment, whether a proceeding. - .....to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding.2. in hementa kumari debi v. mindapur zemindari co. 53 ind. cas. 534 : 46 i.a. 240 : 47 c. 485 : 11 l.w. 301 : 37 m.l.j. 525 : 17 a.l.j. 1117 : 24 c.w.n. 177 : (1920) m.w.n. 66 : 27 m.l.t. 42 : 31 c.l.j. 298 : 22 bom. l.r. 488 the judicial committee held, having regard to the wording of order xxiii, rule 3, of the code of civil procedure, that where a suit is adjusted by a lawful agreement between the parties, the proper course is to recite the agreement in the decree or to annex it as a schedule to the decree, but in either case the operative part of the decree should be confined to the actual subject-matter of the suit; then turning to the indian.....
Judgment:

Venkatasubba Rao, J.

1. The question raised in this case relates to the construction of Section 17(2)(vi) of the Indian Registration Act. Under the clause as it originally stood, 'decree and orders of Courts and awards' were excepted from registration; but by an amendment by Section 10, of the Transfer of Property (Amendment) Supplementary Act. 1929, the following clause was substituted;

any decree or order of a Court 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 proceeding.

2. In Hementa Kumari Debi v. Mindapur Zemindari Co. 53 Ind. Cas. 534 : 46 I.A. 240 : 47 C. 485 : 11 L.W. 301 : 37 M.L.J. 525 : 17 A.L.J. 1117 : 24 C.W.N. 177 : (1920) M.W.N. 66 : 27 M.L.T. 42 : 31 C.L.J. 298 : 22 Bom. L.R. 488 the Judicial Committee held, having regard to the wording of Order XXIII, Rule 3, of the Code of Civil Procedure, that where a suit is adjusted by a lawful agreement between the parties, the proper course is to recite the agreement in the decree or to annex it as a schedule to the decree, but in either case the operative part of the decree should be confined to the actual subject-matter of the suit; then turning to the Indian Registration Act of 1908 and considering the meaning of the word 'decree' Section 17(2)(vi) they further held that there was no reason why a limit should be imposed upon the meaning of the word so as to confine it to the operative portion only of the decree, adding

it may be that as a decree it was incapable of being executed outside the lands of the suit, but that does not prevent it being received in evidence of its contents.

3. The result of this decision is, that the entire decree was excepted from registration, that is to say, that part of it which related to the suit as well as that which was extraneous to it; in other words, for the purpose of the Registration Act, in the case of a consent decree, the expression 'decree' meant the whole of it, both the operative part and the part relating to matters outside the suit. It was while the law was in this state, that the amendment was made.

4. The question that arises is, does the consent decree in question comprise immovable property which is the 'subject-matter of the suit'? To answer this question, I must first briefly state the facts. Rasu Mudaliar (the respondent) filed O.S. No. 6 of 1931 for the recovery of a sum of money from the defendants in that suit. On his application certain properties were attached before judgment and notice was directed to the defendants. Both the application and the suit came on for hearing on January 30, 1931. On that day the parties entered into a compromise and a decree was made embodying its terms. The compromise decree provided for the payment of the amount claimed in three months and created a charge for the sum decreed over the properties that had already been attached. As regards the application an order was simultaneously made, which ran thus; 'Petition is dismissed.'

5. About two years later, Govindasawmi Mudaliar (the petitioner) obtained a money decree against the same defendants in S.C. No. 18 of 1933 and attached the properties already mentioned. Rasu Mudaliar (the respondent) preferred a claim under Order XXI, Rule 58 of the Civil Procedure Code, asserting that by virtue of his compromise decree, he obtained a valid charge over the properties and that his opponent could bring them to sale, only subject to his own charge. This contention was upheld by the lower Court.

6. The first question that arises on these facts, as I have said, is, can it beheld that the properties in question are the 'subject-matter' of the suit O.S. No. 6 of 1931? The respondent's Counsel in support of his contention that they are, relies upon the decisions that have construed the words 'relates to the suit' occurring in Order XXIII, Rule 3 of the Civil Procedure Code. In Joti Kuruvettappa v. Izari Sirusappa 30 M. 478 where the relief claimed was for a money decree only but the compromise decree made the amount a charge on the defendant's property it was held that the compromise was 'lawful within the meaning of Section 375 of the Civil Procedure Code (corresponding to the present Order XXIII, Rule 3) and 'related to the suit'. In that view, in a subsequent suit filed to enforce the charge, the plaintiff was given a decree. In Gobinda Chandra Pal v. Dwarka Nath Pal 35 C. 837 when in similar circumstances a suit was filed upon a charge, the contention that the compromise decree was void for want of registration, was negatived on the ground that it did not offend against the terms of Section 375. These and similar decisions proceeded upon the principle that all terms which form the consideration for the adjustment of the matters in dispute, whether they form the subject-matter of the suit or not, become related to the suit. The questions that arise therefore, are, is it permissible to construe the words 'the subject-matter of the suit' in the Registration Act, in light of the decisions which have interpreted words altogether different, namely 'relates to the suit' occurring in a statute like the Civil Procedure Code? Again is it a far-fetched inference that the amendment was made with a view to alter the law as laid down in Hementa Kumari Debi's case 53 Ind. Cas. 534 : 46 I.A. 240 : 47 C. 485 : 11 L.W. 301 : 37 M.L.J. 525 : 17 A.L.J. 1117 : 24 C.W.N. 177 : (1920) M.W.N. 66 : 27 M.L.T. 42 : 31 C.L.J. 298 : 22 Bom. L.R. 488 referred to above? I prefer to leave the questions unanswered, for I think I can rest my judgment on another ground urged in the alternative for the respondent.

7. The section of the Registration Act refers to both decrees and orders by consent. The order in question must be deemed to have been made both in the suit as well as in the petition for attachment before judgment. The properties had been attached ex parte and notice went to the defendants on the petition. Both the suit and the petition were heard together. The defendants could have not only opposed the attachment but could have also claimed compensation, alleging that the attachment was wrongful; but the parties chose to compromise both the, suit and the petition. The consent decree made must be deemed to have been as much a decree in the suit as an order in the petition; the use of the word 'dismissed' conveys no more than that the petition was disposed of by the decree made in the suit.

8. The question then arises, is an application for attachment a 'proceeding' within Section 17(2)(vi) of the Registration Act? The question must, in my opinion, be answered in the affirmative. There is no reason why the word should be understood in the restricted sense, as referring only to proceedings in original matters in the nature of suits, such as proceedings in probate and guardianship. It is relevant to note that the Civil Procedure Code, treats an attachment before judgment as a supplemental 'proceeding' (See the heading of Part VI of the Civil Procedure Code). The word 'proceeding' is thus defined in Black's Law Dictionary; 'any application to a Court of Justice, however made, for aid in enforcement of rights, for relief, for redress of injuries, for damages or for any remedial object': 2nd Edition, page 947.

9. Stroud points out that the word 'proceeding' may mean according to the context either 'any action' or 'any proceeding in the action'. (Stroud's Legal Dictionary, Vol. 3, page 1561). The old section referred to 'any decree or order of a Court and any award', there was nothing to indicate that the word 'order' was not intended to apply to interim proceedings.

10. I am, therefore, of the opinion that the property in question was the 'subject-matter' of a 'proceeding' within Section 17(2)(vi) and that the consent order (which as I have shown, is also in the circumstances a consent decree) is expected from Registration. The Civil Revision Petition, therefore fails and is dismissed with costs.


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