Ramapathi G. Pathak vs Brahmadeo Guruprasad Pathak

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2000 Supreme(Bom) 602

IN THE HIGH COURT OF BOMBAY
R.J. Kochar, J.
Ramapathi G. Pathak.... Plaintiff.
Versus
Brahmadeo Guruprasad Pathak.... Defendant.
Chamber Summons No. 1486 of 1999 in Execution Application No. 309 of 1999 in Bhadohi Suit No. 60 of 1998, decided on 3-8-2000.
Advocates appeared :
R.D. Pathak, for plaintiff.
C.S. Dube, for defendant.

Headnote:Order XX, Rule 18/Order XXIII, Rule 3-Registration Act, 1908, Section 17(1)-Decree passed by court at Bhadohi Decree included a shop at Bombay-Execution sought-Ground -Reference to said shop was made in suit-Held-To make a property part of decree it is necessary that prayer clause also seeks relief in respect to such property.-Mere mentioning of some properties without seeking any relief qua such properties in the prayers it cannot be said that even the described properties would be the subject matter of the suit. The subject matter of the suit can only be that for which reliefs are sought or prayed for. If there are no prayers or reliefs it cannot be said that whatever is enumerated or averred in respect of the other properties they would also be the subject matter of the suit. The test to find out what is the subject matter of the suit is simple. Had the parties in the case not filed a settlement or compromise what decree the Court would have passed? Surely the decree would have been confined to the prayer clauses and the property mentioned in the prayer clauses. The decree would have been only in respect of the Verandah and the Tractor and it could never have been for the Bombay Shop or any other property beyond the Verandah and the Tractor. The prayers made in the suit alone can be considered to indicate the subject matter of the suit. The subject matter of the suit cannot travel beyond the prayers in the suit. The Bhadohi decree has not been registered it cannot be enforced or executed and therefore, the defendant is entitled to the relief of setting aside the execution orders and for restitution of the Bombay Shop to the extent of his 1/2 share.
Sections 17(1) and 49-CPC, 1908, Order XX, Rule 18, Order XXI, Rule 3-Decree-Execution of Whether it can include the non-suit property-Decree passed by Court at Bhadohi-Also having reference to a property at Bombay-It was not subject matter of suit-Included as consent term-Held-It is necessary to register such property under Section 17(1) of the Act.-A decree or an order of Court is not compulsorily required to be registered as provided under Section 17(1) of the Registration Act. There is, however, one exception made, that is, if a decree or an order of the Court in terms of settlement or compromise between the parties includes the immovable properties other than the subject matter of the suit or proceeding, in that case, such a decree or order will not get the benefit of exception from Section 17(1) of the Act. Such a decree or order will have to be registered as any other document which is enumerated in Section 17(1) of the .Act for compulsory registration. In this case it is an admitted fact that the Bhadohi Decree has not been registered under the Registration Act. Section 49 would therefore be attracted which provides for the consequences of non registration of documents required to be registered. The execution will have to be set aside and the same is therefore set aside. The plaintiff is hereby directed to restore the possession to the defendant to the extent of his 1/2 share in the Bombay shop forthwith. Chamber Summons is made absolute in terms of prayer Clauses (a) and (b). No order as to costs.

JUDGMENT - R.J. KOCHAR, J.:---The original defendant has filed the present Chamber Summons for setting aside the Execution of Consent Decree dated 3-4-1999 passed by the Additional Civil Judge (SD) Bhadohi in Suit No. 60 of 1998 in respect of ½ share in shop No. 7, Koteshwar Apartment, Andheri (East), Mumbai and for 1/2 possession of shop No. 7, by restoring the same to the defendant. In support of the Chamber Summons the defendant has filed his affidavit stating out the case history and the nature of dispute. The defendant has prayed for setting aside of the execution order on the ground that the Bhadohi decree was inexecutable being in contravention of the mandatory provisions of section 17(2)(vi) of the Registration Act, 1908. I have heard both the learned Advocates for their respective parties. I have also carefully gone through the whole proceedings with the assistance of both the learned Advocates. It was submitted on behalf of the defendant that the decree was a consent decree and that the entire family property was described in the plaint. It was last submitted that the compromise decree can be registered even now under the Registration Act. Shri Pathak the learned Advocate for the original plaintiff has also submitted for dismissal of the Chamber Summons as not tenable in the execution Court which is not the Court of first instance.

2. It would be relevant to first look into the suit filed by the original plaintiff before the Bhadohi Court, which was originally in Hindi and the defendant has filed an Official English translation of Hindi of the relevant part of the proceedings, to appreciate the controversy between the parties. I reproduce below the entire prayer clause of the suit:---

15(a) a decree and permanent injunction may be passed in favour of the plaintiff and against the defendant restraining the defendants from demolishing the verandah described in the plaint situated in village-Bankat, Taluka : Kodh, Dist. Bhadohi without partition, interfering in joint use, the possession and occupation thereof, destroying and disposing of Tractor No. U.P. -65-E-1548 Trophy and creating hurdles in the use of the same by the plaintiff.

From the above prayer it is crystal clear that the plaintiff had sought a decree and permanent injunction in his favour and against the defendant restraining the defendant from demolishing the verandah described in the plaint situated in village Bankat, Taluka: Kodh, Dist, Badhohi without partition, interfering in joint use, the possession and occupation thereof, destroying and disposing of Tractor No. U.P. 65-E-1548 Trophy and creating hurdles in the use of the same by the plaintiff. It would be therefore clear that the dispute in the suit was in respect of the verandah and the Tractor. Though the property purported to be the joint family property as described in paragraphs 6 and 7 of the Bhadohi plaint the prayer for a decree and permanent injunction was confined only to the verandah and the Tractor in the village. There was no relief sought in respect of the shop at Bombay. It however appears that both the parties arrived at a compromise and the dispute in the suit was settled by filing such a settlement before the Bhadohi Court. In Clause 2 of the Settlement (Official English Translation of Hindi) it was agreed between the parties that the flat and Chawl situated at Bombay were exclusively owned by the defendant and Shop No. 7 was to be exclusively owned by the plaintiff. It was further provided that both the parties were required to get the legal formalities completed in that respect in Bombay. We are not concerned with the remaining part of the Settlement which of course included the items of Verandah and the Tractor. The Bhadohi Court accepted the consent terms and instead of deciding the case on merits disposed of the suit in terms of the aforesaid consent terms and passed a decree to that effect.

3. Pursuant to the aforesaid decree passed by the Bhadohi Court the plaintiff filed

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