A charge created by a compromise decree is not valid unless it is incorporated in the operative part of the decree and is created by a registered instrument.

NARASIMHAM, J.

( 1 ) THIS is a plaintiff's appeal against the judgment of the Additional Subordinate judge, Puri dismissing his suit for a declaration of his right in respect of twelve annas interest in a house standing on plot no. 1068 in the town of Puri and for other consequential reliefs.

( 2 ) THE said plot is within the town Khasmabal of Puri Collectorate and was settled by the Khasmahal with one Gadadhar Sahu who constructed and building thereon. One of the points agitated in the lower Court was that the house was the exclusive property of Gadadhar Sahu, But this was decided against the defendants (vide para. 7 of the lower Court's judgment) and this decision was not challenged in appeal. It may therefore be taken as well-established that the lease-hold property and the house standing on the said plot were the joint property of Gadadhar Sahu and his three brothers who admittedly were members of a Hindu joint family at all relevant times.

( 3 ) THE plaintiff is a businessman and moneylender of Cuttack town. He instituted a suit (M. S. no. 197 of 34) against Gadadhar Sahu and his three brothers for realisation of the price of the articles supplied on credit to them amounting to about Rs. 12,653-8-0. He also took out an order for attachment before judgment of some of the properties of the joint family including disputed house. But before the said order of attachment was actually served at the spot the parties came to a compromise in pursuance of which a compromise decree was passed on 30th July 1984. In the operative portion of the decree one of the terms which referred to a charge being created in favour of the plaintiff decreeholder in respect of the disputed house by way of security for payment of the compromise decretal amount was not embodied but it remained in the petition of compromise which was also attached to the decree, Subsequently, however, on 16th February 1939 the said petition appears to have been made part of the decree by an order of the Court and there is an endorsement at the end of Ex. 3 to that effect. But no evidence was led about the circumstances under which the Court passed the order on 16th February 1939 directing the compromise "petition to be part of the decree and the order itself was not proved, The learned lower Court rightly refused to take the endorsement to be sufficient to show that the compromise petition also became part of the decree. The judgment-debtors failed to implement some of the terms of the compromise and thereupon the appellant decree-holder filed an execution (Execution case no. 862 of 34 renumbered as 17 of 36 ). It is unnecessary to describe in detail the various stages in the execution petition and it is sufficient to note that in execution of the said compromise decree the appellant purchased the disputed house on 16th September 1937 and also obtained delivery of symbolical possession on 29th April 1938. His title to the house is based on the court sale dated 16th September 1937 in execution of the compromise decree obtained against Gadadhar Sahu and his three brothers.

( 4 ) RESPONDENT 1 is a prominent lawyer and money-lender of Puri town and he claims to have purchased the entire house in a certificate sale dated 13th february 1935 (certificate case No. 277 of 1933. 34 ). The certificate case arose in conaquence of a certificate filed by the Income-tax authorities on 10th March 1934 against Gadadhar Sahu for realisation of income-tax dues with penalty. After the certificate sale dated 13th February 1936 and delivery of possession, the three brothers of Gadadhar Sahu filed an objection under Section 85, B. and o. Public Demands Recovery Act. But their objection was rejected on 15th november 1935. Respondent 2 is a subsequent purchaser of the disputed property from respondent 1.

( 5 ) IT will be noticed that the plaintiff's purchase at court auction in execution of his compromise decree was on 16th September 1937 whereas the purchase by defendant 1 in the certifica