IMPORTANT POINT
Decree passed under the compromise, when attachment of the properties has been made before the judgment, is not compulsorily registrable under Section 17 of Registration Act, 1908.

ORDER

This appeal by special leave arises from the order of the learned single Judge of the Kerala High Court made on June 24, 1977 in CRP No. 3375/76. The facts are fairly not in dispute. O.S. No. 95/53 was filed in the court of the Sub-ordinate Judge at Quilon by Palai Central Bank Ltd. to recover the amounts due from D.J. Gonzago, the second respondent. Certain properties appended to the Schedule to the plaint and also items 1 to 7 of the petition were attached before judgment under Order 38 Rule 6, Civil Procedure Code, 1908 (for short the Code ). On April 3, 1954, a compromise decree was made empowering the decree holder to have the scheduled properties including item Nos. 1 to 7 of the additional properties mentioned above. In the meanwhile, the bank went into liquidation. The liquidator brought those properties to sale. With permission of the court those properties were purchased by the decree-holder in execution on June 26, 1969, and the sale was confirmed. On April 25, 1974, these properties, the subject matter in this case, were sold by the liquidator to the first respondent-Thiru Venkita Reddiar.

2. The appellant S. Noordeen, plaintiff in O.S. No. 38/60 on the file of the court of the Subordinate Judge, Quilon filed a suit against D.J. Gonzago for recovery of the money claim. On March 28, 1961, the money decree was passed. The properties covered under items 1 to 7 of the petition were sold in execution of the decree in O.S. No. 95/53 after due attachment on January 13, 1969. The sale was confirmed on September 13, 1974. The appellant, therefore, filed E.A. No. 57/75 to declare that the sale of properties of the in execution of the decree in O.S. 95/53 at items 1 to 7 of the compromise decree was not valid and it does not bind him. That was upheld by the executing Court and the District Court in CMA. Thus the respondent came to file CRP in the High Court. The High Court has held that though items 1 to 7 were not part of the schedule mentioned properties, they became subject matter of the proceedings in O.S. No. 95/53 in which compromise decree, ultimately passed on 3.4.1954, properties were under attachment from 1953. Therefore, they became part of the suit properties. Consequentially, they are not required to be compulsorily registered. The decree thereby is not liable to be annulled. The appellant does not get any valid right to the properties since they have already been sold.

3. Shri Sudhakaran, learned counsel for the appellant contended that a view of the fact that items 1 to 7 of the compromise decree dated 3.4.54 were not the subject matter of O.S. No. 95/53 for recovery of the debt due from Gonzago, the decree was required to be registered under Section 17(1) of the Registration Act, 1908 [for short, the Act ] which was not done. Therefore, the right, title and interest of the judgment-debtor Gonzago was not divested. The appellant having purchased the property and having got the properties registered in the Court sale, he got better title. The view of the High Court, therefore, was wrong in law. We find no force in the contention.

4. It is necessary to clear the factual position which is not fairly in dispute. There was attachment before judgment in O.S. No. 95/53 subsisting till June 26,1969, the date on which the property items were sold in execution and the liquidator had become the purchaser from the Court sale. The sale thereof was confirmed. The entire sale consists of items of the Schedule and items 1 to 7 mentioned in the petition in addition to the Schedule. It is seen that there was a compromise between the Bank and the judgment-debtor. Pursuant thereto, the decree was passed on April 3, 1954 comprising of all the properties.

5. The question, therefore, emerges : whether the decree passed under the compromise would attract exception engrafted in clause (vi) of sub-section (2) of Section 17 or the main part in clause (vi) of sub-section (2) of Section 17 of the Act ? The attachment before the jud