Wanchoo, C.J.—This is an appeal by Ganeshilal judgment debtor in an execution proceeding and has arisen in the following circumstances.

2. A suit was brought by Ramgopal now deceased, and his sons Bhanwarlal and Gordhan against Ganeshlal, and two others, for a sum of Rs. 46,593/10/9. There was prayer for attachment before judgment of the immovable peoperty of Ganeshilal, and an interim injunction was issued to Ganeshlal forbidding him from alienating his share in a certain house. Before this interim injunction was confirmed, the parties compromised the suit, and a decree for Rs. 32,000/- was passed against the three defendants including Ganeshlal. The decree, among other terms provided for payments of five instalments of the entire decretal amount. It was also provided that in case of default of even one instalment, the decree-holders would be entitled to realize the entire decretal amount with interest. There was also a provision creating a charge on the share of Ganeshlal in a house in the city of Udaipur.

3. The first instalment was due on the 31st of July, 1952, but nothing was paid. In view of this default, the decree-holders applied for execution on the and of September, 1952, and prayed for sale of immovable property of Ganeshlal and other judgment-debtors. Ganeshlal appeard and objected to the execution application on the 7th of Februart, 1953. In the meantime he had paid certain amounts to the decree-holders after the execution application had been filed. The main contentions of Ganeshlal were these:—

(1) As the decree created a charge on the immovable property of Ganeshlal, it required registration, and as it was not registered, it could not be executed at all.

(2) In the alternative, if the charge was validly created by the decree, the decree, the decree-holder cold only enforce the charge by means of a suit, and not by an execution application.

(3) The execution application was not according to law, and was, therefore, liable to be dismissed on that ground.

(4) As the judgment-debtors had paid something more than the first instalment something after the execution application had been filed, the court should not proceed to enforce the penal clause and execute the entire decree at once.

4. The executing c6urt decided all these points against the judgment-debtors. Hence this appeal.

5. The most important question is whether the decree required to be registered, inasmuch as it created a charge on the share of Ganeshlal in the house situate in the city of Udaipur. In this connection reference was made to sec. 17 of the Registration Act which requires all non-testamentary instruments, which purport or operate to create, declare, assign, limit or extinguish, whether in present, or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property, to be registered, There is, however, an exception to this in the same section. It says that the above provision does not apply to any decree or order of a court except a decree or order expressed to be made on a compromise and compromising immovable property other than that which is the subject-matter of the suit or proceeding.

6. The question, which arises at once, is whether this decree can be said to be exempt from registration in view of sec. 17(2)(vi) of the Registration Act. The contention on behalf of the appellants is that that exception does not apply as the property, which was the subject matter of the charge, was not the subject-matter of the suit, and the charge had been created by a compromise.

7. We are of opinion that this contention of the appellants is well-founded. Sec 17 (2)(vi) exempts decrees or orders of courts from being registered; but where a decree or order is based on a compromise and comprises immovable property other than that which is the subject-matter of the suit or proceedings, such decree or order has to be registered if covered by sec. 17(1). Authorities on this point are pra

Click Here to Read the rest of this document