ORDER
1. These are two applications for a certificate for leave to appeal to the Supreme Court on the ground that the appeals involve some substantial questions of law. It is not seriously contested that the amount or value of the subject matter of the dispute in the Court of first instance and still in dispute on appeal is more than Rs. 20,000/-. It is also clear that the judgment of this Court affirms the decision of the Court below; therefore, the judgment-debtors-petitioners must satisfy this Court that the appeals involve some substantial question of law.
2. The short facts, so far as they are relevant to the question before us, are these. Srimati Dhiraj Kueri brought Suit No, 27 of 1943 in the Court of the Special Subordinate Judge of Ranchi, for
declaring her title to and recoverying her possession of certain properties. The suit wag decreed. An appeal was then preferred to this Court, being first Appeal No. 214 of 1945. There was, a compromise between the parties, and the term of compromise with which we are concerned on the present applications, is quoted in para 2 of the applications. That term stated :
“Regarding village Lawagain, Khewat No. 2, Thana No. 137 decree-holder’s share is 8 annas out of 12 annas. Schedule A lands of the compromise decree given to the decree-holder with the stipulation that if title to the same or any part thereof is found defective or any part thereof is found to have been settled or any other defect is found, then lands of equal area and quality out of Schedule D lands, will be given to decree-holder by proper documents, and on failure, or if Schedule D lands be not found sufficient for the purpose, then the decree-holder will be compensated at Rs. 2000/- per acre of bakasht lands.’
First Appeal No. 214 ,of 1945 was then decreed on compromise. It was specifically stated in the order recording the compromise that as one’ of the terms of the compromise referred to lands outside the scope of the suit, it was necessary that the decree should be registered in the Registration Office.
It may be stated here that Schedule A lands mentioned in the term of the compromise referred to above were the subject-matter of the suit, but Schedule D lands referred to in the term of the compromise were not the subject-matter of the suit which Srimati Dhiraj Kueri had brought.
3. The compromise decree was not, however, registered, and on 11-1-1950, Shrimati Dhiraj Kueri filed a petition for execution of the compromise decree in the Court of the Special Subordinate Judge, Ranchi. In her execution petition she stated that as the judgment-debtors had settled with the tenants 19.25 acres comprising various plots out of Schedule A lands, she was entitled to a sum of Rs. 38,500/- by way of compensation, as the judgment-debtors had not carried out the relevant term of the compromise by executing a document for equivalent lands of Schedule D.
The judgment-debtors, petitioners before us, pleaded that they had complied with the relevant term of the compromise by executing and registering a deed of exchange with regard to Schedule D lands. It was, therefore, pleaded by the judgment-debtors that Shrimati Dhiraj Kueri was not entitled to the monetary compensation for 19.25 acres of land. “It was further pleaded by the judgment-debtors (1) that the decree was not capable of, execution for want of registration, and (2) that in any view, the default, clause with regard to monetary compensation could not be enforced by reason of the decree not having been registered.
It was pleaded by the judgment-debtors that the remedy of the decree-holder was by the institution of a separate suit to enforce the agreement.
4. The learned Subordinate Judge negatived the pleas of the present petitioners. Two appeals were preferred to this Court by some of the judgment-debtors, and a Division Bench of this Court held that, though the term regarding the transfer of an equivalent quantity of Schedule D lands was not enforceable by reason of want of registration the argument that the default clause with regard to monetary compensation for 19.25 acres of bakasht lands was not enforceable could not be accepted.
It was held on the basis of the decision of this Court in — ‘Jagadish Chandra v. Kameshwat Singh’, AIR 1953 Pat 178 (A), that though Schedule D
Janets were outside the subject-matter of the suit brought by: Shrimati Dhiraj Kueri, she was yet entitled to execute the decree with regard to the monetary compensation for 19.25 acres of land.
-It was held that the condition regarding the payment of Rs. 2000/- per acre did not render the registration of the compromise decree compulsory, though the introduction of a deed of transfer of lands outside the scope of the suit necessitated that the decree, should be registered.
It may be further stated that the Court below had held that the lands transferred by the judgment-debtors by the deed of exchange were of a quality inferior to what was intended to be transferred by the compromise decree. This finding of the’ Court below was approved by this Court, though it was further held that the deed of exchange in respect of properties in Schedule D, which were not the subject of the suit, could not be looked into for want of registration. On these main findings the decision of the Special Subordinate Judge was affirmed by this Court.
5. Mr. Lal Narain Sinha has appeared for the petitioners and his contention is that these two appeals raise the following substantial question of law. He has pointed out that under Section 17 (2) (vi), Registration Act, nothing in Clauses (b) and (c)
of Sub-section (1) of that section applies to any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immoveable property other than that which is the subject-matter of a suit, or proceeding.
It is pointed out that in the case before us the decree or order made on compromise between the parties did comprise immoveable property other than that which was the subject-matter of the suit. It is further pointed out that the relevant term of the compromise with regard to Schedule D lands did create or declare a contingent interest in the decree-holder in Schedule D lands; therefore, the decree in this case was of the nature of an instrument mentioned in Section 17 (1) (b), Registration Act and required registration, unless excepted by Clause (vi) of Sub-section (2).
Inasmuch as the decree comprised immoveable property other than that which was the subject-matter of the suit, the decree did not come within the exception of Clause (vi) of Sub-section (2) and, therefore, the decree should have been registered. In the absence of such registration the relevant term of the compromise could not affect Schedule D Lands, nor could the decree be received in evidence of any transaction affecting Schedule D land.
Mr. Lal Narain Sinha has contended that if that be the correct legal position, then the default clause regarding payment of monetary compensation cannot also be enforced or received in evidence; because the default clause is connected with and is inseparable from the transfer of the lands of Schedule D of an equal area and quality. His argument is that if the transfer of Schedule D lands cannot be looked into by reason of want of registration of the decree, then the default clause cannot also be looked into or enforced for the same reason.
6. This aspect of the case does not appear to have been considered by the Division Bench. The Division Bench relied on a decision of this Court in AIR 1953 Pat 178 (A). That was, however, a case with regard to the terms of Order 23, Rule 3, Civil P.C. The report does not show that any question of registration arose, and the compromise in that case was one which related to a period earlier than 1-4-1930 the date on which Clause (vi) of Sub-section (2) of Section 17, Registration Act was
amended by the Transfer of Property (Amendment) Supplementary Act, 1929.
Before the amendment, Clause (vi) of Sub-section (2)
saved any decree or order of a Court from the
operation, of Clauses (b) and (c) of Sub-section (1) of Section 17.
What was considered in AIR 1953 Pat 178 (A),
and in an earlier Bench decision in — ‘Ramjanam
v. Bindeshwari Bai’, AIR 1951 Pat 299 (B), a decision on which learned Counsel for the parties has
relied and to which one of us was a party, was
the meaning of the expression “subject-matter of
the suit” occurring in Order 23, Rule 3, Civil P.C. It
was observed :
“The question whether a particular term of a compromise relates, to the subject-matter of the suit has to be answered on the frame of the suit, the reliefs claimed and the matters which arose for, decision in the case on the pleadings of the parties. The term is comprehensive enough and if the compromise relates to all those matters which fell to be decided in the case, it could not be said that any part of the compromise was beyond the Subject-matter of the suit.
There is a large body of authority to show that where a compromise relating to matters outside the scope of the suit is a part of the consideration for the agreement as to matters in suit, the entire compromise as an integral whole must be recorded and decreed, as relating to the suit whether they otherwise relate to the suit or not.”
It should be remembered, however, that those observations were made with regard to the terms of Order 23. Rule 3,’ Civil P. C.; no question of registration or the effect of Clause (vi) of Sub-section (2) of Section 17, Registration Act was considered.
All that was laid down was that under Order 23, Rule 3, the Court can treat the entire compromise as an integral whole when the compromise is of such a .nature that what is outside the scope of the suit is merely a consideration for the agreement as to the subject-matter of the suit. We find it somewhat difficult to follow how those two decisions can be invoked to aid the enforcement of the monetary compensation clause in the present case.
It seems to us that the contention of Mr. Lal Narain Sinha that the monetary clause must stand or fall with the clause relating to the transfer of lands in Schedule D of an equal area and quality does raise a substantial question of law in these two appeals, a question which does not appear to have been considered by the Division Bench at least in the shape and form in which it has been put to us by learned Counsel for the petitioners.
7. Mr. Lal Narain Sinha has also contended before us that after the close of the arguments in the case before the Division Bench, an application was made on behalf of the petitioners that they were still willing to execute a transfer deed with regard to Schedule D lands of an equal area and quality, in case the deed of exchange which they had already executed was found to be of inferior lands.
In this circumstance, Mr. Lal Narain Sinha’s contention is that there was no wilful default on behalf of his clients, We consider that this is a matter which should have been pressed before the Division Bench; and as it was not pressed there, no leave can be granted to the petitioner on this ground.
8. We are, however, of the option that Mr. Lal Narain Sinha is entitled to succeed on the first ground mentioned by him, namely, that these two appeals raise a substantial question of law. We would accordingly allow the applications and certify that these two appeals raise a substantial question
of law. In the peculiar circumstances of the
case, and particularly in view of the fact that the
argument which has now been presented to us
was not clearly presented before the Division
Bench, we direct that there will be no order for
costs.