2000 Supreme(Bom) 864

IN THE HIGH COURT OF BOMBAY
R.J. Kochar, J.
Ashok Thapper.... Plaintiff.
Versus
Saral Enterprises others.... Defendants.
And
Saral Enterprises others.... Applicants.
Chamber Summons No. 1219 of 2000 in Suit No. 1708 of 1992, decided on 14-11-2000.
Advocates appeared :
Pravir Diwan with Denzil D’Mello, for judgment debtor in support of the chamber summons.
D.H. Mehta with N.M. Shah, for judgment creditor to show cause.

Headnote:Civil Procedure Code, 1908

       Section 2(2)-Evidence Act, 1872, Section US-Scope for estoppel-Documentary interpretation-If plaintiff resorts to clause 9 he should be estopped from entering clause 10Held-Contention not proper-Both clauses are to be considered simultaneously-If by sale full amount is not recovered it can be covered by extending sale under clause 10.-All the clauses in the consent terms are to be read together and they cannot be construed by applying the principles of interpretation of statutes. Clause 9 is absolutely clear and even Clause 10 is equally simple. If by sale of the property as contemplated under Clause 9, the decree is satisfied and if any balance remains that will have to be reverted back to the defendants and if there is any short fall that will have to be recovered by resorting to Clause 10 of the consent terms. Both are not mutually exclusive but they are to be read together in aid of each other.

       Section 47, Order XXI Rule 1-Power of Executing Court-Can it go behind decree-Challenge to consent decree-At execution- stage-Ground-Terms were get signed under pressure-Real payable amount Rs. 2.5 crore only against sale amount of Rs. 4.5 crores-Executing Court can go behind decree-Applicants counsel had already accepted liability of Rs. 4.5 crores-How Court cannot consider about amount of liability. There is no challenge to the consent terms and the decree in terms of the consent terms. Besides, the defendants have more than once signed the consent terms and admitted the decretal amount to be paid to plaintiffs. The first consent terms are drawn in sufficient details. There are second consent terms which were signed by the defendants in the proceedings which were taken out by them for extension of time to make payment in terms of the first consent terms. In the correspondence, they had agreed to pay the amount under the decree. It was a letter written by the learned Advocate for the defendants and not by anyone else. No other circumstances or factors are put forth before to lift the veil of the decree and to enter its back yard. A very crucial and important fact cannot be forgotten that there were two consent terms admitting the liability to pay to the plaintiff. In these circumstances, it is not at all open to Court sitting as an executing Court to question the consent decree on the points raised by the learned Counsel for the applicant.

       Order II, Section 2(2)-Indian Registration Act, 1908, Section 17-Effeet of decree-Challenged-Ground -It was not duly registered-Consent decree opposed-Auction sale of flat-as per consent decree-No right created on flat-No complete rights on title of flat-It is mentioned as security only-Decreetal amount can be paid by judgment debtor to release said flat-Hence Registration of decree not necessary.-Merely because some immovable property which is not mentioned in the plaint and which is not actually the suit property in dispute between the parties cannot be treated as inseparable from the suit. What is contemplated in Section 17(2) of the Registration Act as the immovable property to be the subject matter of the suit is the property over which there is a dispute between the parties and not the property which is offered as a consideration for compromise between the parties. The flat was offered by the defendants as a security to the plaintiff, and therefore, it has got to be regarded as the subject matter of the suit and therefore, the decree in terms of the consent terms need not be registered as required under Section 49 of the Registration Act.