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1963 Supreme(Raj) 126
Rajasthan High Court
Modi & Shinghal, JJ.
Teel Chand - Appellant
Versus
Chimni Ram - Respondents
D.B. Civil Execution First Appeal No. 7 of 1960
Decided On : July 17, 1963
Hasti Mal Parakh, for appellant; K.S. Lodha, for respondent
Headnote:(a) Civil P.C., O.23, R. 3—Relates to the suit—Court to sift between parts relating to suit and not so relating to suit. \(b) Civil P.C., 0. 23, R. 3—Compromise decree including part not relating to suit - Defendant failing to take objection either before court or by appeal—Judgment debtor cannot take objection in execution on executabi-lity of decree except in certain cases.(c) Registration Act, Sec. 17(l)(b) and(2)(vi)—Decree "not creating any rights but merely enjoining on defendant to execute sale deed not registrable.
It is the duty of the court to see which parts of the compromise relate to the suit and which do not, and it should confine its decree to such parts only as do relate to the suit, and so far as the remaining parts thereof are concerned, these should be embodied in the decree itself or in a separate schedule to the decree but in either case care should be taken to clearly mention only such terms of the compromise in the operative part of the decree as relate to the suit but not the others. (para 5)
Where the court passing the decree on the basis of a compromise happens to pass a decree in accordance with the terms thereof, and, in doing so, not only includes in such decree the parts which relate to the suit but also those which do not, and no objection thereto is raised by the defendant either before that court or in appeal, then it is not open to the judgment-debtor in such a case to object to the execution of such a decree before the executing court though it contains certain terms which do not relate to the suit and should not therefore have been included therein. To this general rule, however, there is a rider, and that is that where a decree suffers from an inherent want of jurisdiction in the court passing it, it can certainly be challenged in execution, and that principle is perfectly well-settled. But a decree cannot be said to suffer from an inherent want of jurisdiction simply because the court has incorporated therein certain terms of the compromise which do not relate to the suit along with others which so relate thereto, and, such a defect, assuming that it exists, is at the worst an irregularity which does not and cannot make the decree a nullity. Another exception to this would be where the decree passed by the court is incapable or impossible of execution, either in whole, or in part, in cannot but be allowed to be challenged in execution. Such a case, for example, would arise where the decree enjoins the performance of some act which the judgment-debtor cannot be compelled to perform in law, and that being so the decree has to be held as incapable of execution. (para 12)
In order to sustain the objection as to registration, it must further be shown that the decree by itself partakes of the nature of an instrument which is compulsory registrable within the meaning of sub-sec. (1) of sec. 17. The compromise decree in this case did not create or declare a right with respect to the properties in question, but it was contemplated between the parties that sale-deeds will have to be executed and registered before any title to these properties was to pass from the judgment-debtor to the decree-holders, and it was only on the registration of such deeds and the delivery of possession that the decree-holders could be called upon to pass a final receipt in satisfaction of the decree. The decree by itself was not enough to create any title in favour of the decree-holders with respect to the properties in question save to the extent that it gave them a right to have certain documents executed and completed in their favour. Upon the happening of such contingency alone, any title with respect to these properties could pass in favour of the decree-holders. Therefore the decree provided for something in the nature of an agreement to sell, and quite clearly such an agreement was and is not compulsarily registrable. (para 14)
1. A sum of Rs. 3,000/-was agreed to be adjusted against the sale of a house which the judgment-debtor had undertaken to have made by his brother Jeth Mal in favour of the decree-holders.
2. Two sums of Rs. 2,500/- and Rs. 1,000/- were to be adjusted against the sale of the house and a shop respectively belonging to the judgment debtor the particulars of which properties were mentioned in the compromise.
3. A gold Dora of the value of Rs. 1,500/- had been given to the decree-holders by the judgment-debtor.
4. A sum of Rs. 2,000/- had also been given in cash.
5. Claim to a sum of Rs. 295/- was relinquished by the decree-holders.
6. The remaining amount of Rs. 375/- was agreed to be paid in cash by Kati Sudi 15, Samwat 2012.
It was further agreed that the judgment-debtor will have the necessary documents executed with respect to the immovable properties mentioned above and registered within 10. days from the date of the compromise i.e. 19th of October, 1955, and will handover possession thereof to them. It was also agreed that all costs of registration and on account of stamps were to be defrayed by the decree-holders, and, that on the judgment-debtors completing sales by registration and delivery of possession, the decree-holders will give a full and final receipt to the judgment-debtor.
It appears that on the 21st October, 1955, the judgment-debtor made an application to the executing court that he was prepared to complete the sales with respect to the immovable properties mentioned above but the decree-holder was employing evasive tactics and therefore the decree should be executed as agreed to between the parties. We do not have the order of the court which was passed on this application, but it seems that what it said was that it was unable to help the judgment-debtor presumably because the decree-holders had not applied for execution. Nothing seems to have happened for some time, when, just before the limitation was to expire, the decree-holders made an application for execution of the decree on October 7, 1958, in which they prayed that the judgment-debtor be called upon to execute the sale deeds in compliance with the decree as per drafts submitted by him. It was now the judgment-debtors turn to object to this. The main objections raised by him were two in number (i) that the decree contained terms which did not relate to the suit and (ii) that one of the houses comprised in the decree belonged to his brother Jeth Mal and that it was not within his power to compel him to execute a sale-deed with respect thereto in favour of the decree-holders. Both these objections were repelled by the learned District Judge by his order dated the 16th November, 1959, and the learned Judge directed that the terms of the decree providing for the execution and registration of sale-deed, with respect to the various properties mentioned in the documents be enforced as prayed for in the execution application, and that the necessary expenses in that connection be deposited in court by the decree-holders. At this stage we may also mention that the learned District Judge being of the opinion that by some oversight the decree-sheet prepared in the court of District Judge did not embody the full terms of the compromise inasmuch as following portion therein was somehow omitted from mention, viz.
^^fMdzh dh ckdh rkehy gLc kjkjr ds uhps eqtc gksxhA tks eqnk;yk eqnb;ku dks rk- 19-10-55 ls jkst ds vUnj dj nsxkA^^
ordered that the same be duly inserted, thereby. Aggrieved by this decision the judgment-debto
