CALCUTTA HIGH COURT
Jyotirmay Bhattacharya, J.
Smt. Dipali Roy —Petitioner
versus
Sri Samir Banerjee —Opposite Party
C.O. No. 668 of 2010
Decided on 18.6.2010

IMPORTANT POINTS
(1) A compromise was sought to be effected in respect of a non-suit property which was proposed to be constructed in the same premises, but since the non-suit property is different from the suit property, the exception provided in Section 17(2)(vi) is apparently attracted.
(2) Under the amended provision of the Civil Procedure Code compromise between the parties in respect of a non-suit property is permissible under Order 23, Rule 3 of the Civil Procedure Code.

Headnote:Registration Act—Section 17(2)(vi) —Suit for declaration of Leasehold rights in suit property and for injunction decreed on compromise—Execution—Objection on ground that a new right was created in favour of decree holder in respect of property which was not the subject matter of suit and compromise decree having not been registered, it was incapable of execution—Executing Court found that judgment debtor had agreed to give a flat on second floor of suit property building in exchange of plaintiff’s lease hold interest in ground floor flats of same premises compromise decree did not require registration in view of exception in Section 17(2)(vi) of the Act—Whether view of the execution Court was legally sustainable? Yes.

       Held: Thus, it is case where both the suit property i.e. the lease hold property of the plaintiff/ opposite party and the property which was agreed be given absolutely to the plaintiff by the defendant in consideration of surrender of the said lease hold interest in the suit property, situate in the same premises i.e. premises No. 18/57, Dover Lane, Kolkata-700029. As such the learned Executing Court held that since the Municipal holding number of both the suit property and the non-suit property are same and identical, the exception which is provided in Section 17(2)(vi) of the Registrations Act is not attracted in the instant case. Though, it is true that the Municipal holding number of the premises concerned is same but the suit property and the non-suit property are different as the lease hold interest was created in favour of the plaintiff under the lease in respect of ground floor flats the non-suit property which was agreed to be given to the plaintiff/decree holder by the defendant/judgment-debtor in the front portion of the second floor of the building which was proposed to be constructed by the constituted attorneys in the same premises. Thus, apparently it appears that a compromise was sought to be effected in respect of a non-suit property which was proposed to be constructed in the same premises, but since the non-suit property is different from the suit property, the exception provided in Section 17(2)(vi) is apparently attracted in the instant case. Let me now examine as to how far this apparent view can be accepted in the facts of the instant case.

       Under the amended provision of the Civil Procedure Code compromise between the parties in respect of a non-suit property is permissible under Order 23, Rule 3 of the Civil Procedure Code. As such the parties can settle their dispute by compromise in respect of a non-suit property. The validity of the decree, thus, cannot be challenged because of inclusion of a non-suit property within the campus of compromise decree. Now the question is as to whether such a decree requires registration compulsorily. Section 17 sub-Section 2(vi) of the Registration Act provides that if any settlement is made in respect of any non-suit property, the compromise decree passed on the basis of such settlement comprising of such non-suit immovable property is required to be compulsorily registered when such decree creates an interest in such non-suit property in favour of any of the parties in presenti i.e. by present demise. But if no interest is created in such non-suit property in presenti by any compromise decree then can it be said that such a compromise decree is required to be registered? (Paras 18 & 19)

       If the principles which were laid down by the Hon’ble Supreme Court in the said decisions is applied in the instant case, then it cannot be held that the non-suit property which was agreed to be given absolutely by the judgment debtor to the decree holder as a consideration for settlement of the dispute relating to the said property, was not the subject matter of the suit. If the terms of settlement are considered minutely then it will be found that the non-suit property v-as introduced in the said compromise decree as a consideration for compromise of the dispute relating to the suit property. As such even for inclusion of the said non-suit property in the compromise decree, it cannot be held that registration of the said compromise decree is compulsorily required for validating the said compromise decree.

       That apart if the terms of the compromise petition are further considered from a different angle, then it will be apparent that by the said decree no interest was created in the non-suit property in favour of the decree-holder in presenti. The use of the expression “creates” in Section 17(2)(vi) of the said Act, makes it clear that in order to attract the provision, interest in the non-suit property should be created by present demise. The parties simply agreed to transfer the said non-suit property in favour of the decree holder on a subsequent date by executing a registered deed of conveyance and that top after delivery of possession thereof to the decree holder. It was also agreed between the parties that surrender of lease will be made by the decree-holder in favour of the judgment debtor only after execution and registration of the deed of conveyance for transferring the title in respect of the non-suit property by the judgment debtor in favour of the decree-holder. Thus, in fact, an agreement to create an absolute interest in the non-suit property was entered into between the parties in the said compromise decree and the said non-suit property was introduced in the compromise as a consideration for settlement of a dispute relating to suit property. Thus, no interest in the non-suit property was, in fact, created in favour of the decree holder in presenti. Rather the said compromise decree provides for doing certain further acts by the parties in future for creating an interest in the non-suit property in favour of the decree holder. Thus, such a decree in my view, does not require registration compulsorily under Section 17 of the said Act for receiving its enforceability by way of execution. In this regard, reliance may be made on the decision cited by Mr. Chatterjee in the case of V. B. Dharmayat v. Shree Jagadgure Tontadrya & Ors. (supra) and in the case of Raj Kumar Rawala v. Manabendra Banerje (supra), wherein identical issue was discussed.

       That apart the judgment-debtor has also obtained the benefits under such compromise decree. The possession of the lease hold property was handed over by the decree holder to the Constituted Attorneys of the judgment-debtor in terms of the said compromise decree for enabling them to develop the suit property. As such, in my view, the judgment-debtors, after having enjoyed the benefits under the compromise decree, are estopped from challenging the executability of such decree for want of non- registration even though for the sake of argument it is accepted that such compromise decree requires registration.

       The said compromise decree, as it stands, is very much executable. Accordingly, this Court holds that the revisional application deserves no merit for consideration. The revisional application thus, stands rejected. (Paras 22 to 25)

       Result: Revision dismissed.