R.J. Kochar, J.
1. The original defendant has filed the present Chamber Summons for setting aside the Execution of Consent Decree dated 3-4-1999 passed by the Additional Civil Judge (SD) Bhadohi in Suit No. 60 of 1998 in respect of 1/2 share in shop No. 7, Koteshwar Apartment, Andheri (East), Mumbai and for 1/2 possession of shop No. 7, by restoring the same to the defendant. In support of the Chamber Summons the defendant has filed his affidavit stating out the case history and the nature of dispute. The defendant has prayed for setting aside of the execution order on the ground that the Bhadohi decree was inexecutable being in contravention of the mandatory provisions of section 17(2)(vi) of the Registration Act, 1908. I have heard both the learned Advocates for their respective parties. I have also carefully gone through the whole proceedings with the assistance of both the learned Advocates. It was submitted on behalf of the defendant that the decree was a consent decree and that the entire family property was described in the plaint. It was last submitted that the compromise decree can be registered even now under the Registration Act. Shri Pathak the learned Advocate for the original plaintiff has also submitted for dismissal of the Chamber Summons as not tenable in the execution Court which is not the Court of first instance.
2. It would be relevant to first look into the suit filed by the original plaintiff before the Bhadohi Court, which was originally in Hindi and the defendant has filed an Official English translation of Hindi of the relevant part of the proceedings, to appreciate the controversy between the parties. I reproduce below the entire prayer clause of the suit:—
15(a) a decree and permanent injunction may be passed in favour of the plaintiff and against the defendant restraining the defendants from demolishing the verandah described in the plaint situated in village-Bankat, Taluka : Kodh, Dist. Bhadohi without partition, interfering in joint use, the possession and occupation thereof, destroying and disposing of Tractor No. U.P. -65-E-1548 Trophy and creating hurdles in the use of the same by the plaintiff.
From the above prayer it is crystal clear that the plaintiff had sought a decree and permanent injunction in his favour and against the defendant restraining the defendant from demolishing the verandah described in the plaint situated in village Bankat, Taluka: Kodh, Dist, Badhohi without partition, interfering in joint use, the possession and occupation thereof, destroying and disposing of Tractor No. U.P. 65-E-1548 Trophy and creating hurdles in the use of the same by the plaintiff. It would be therefore clear that the dispute in the suit was in respect of the verandah and the Tractor. Though the property purported to be the joint family property as described in paragraphs 6 and 7 of the Bhadohi plaint the prayer for a decree and permanent injunction was confined only to the verandah and the Tractor in the village. There was no relief sought in respect of the shop at Bombay. It however appears that both the parties arrived at a compromise and the dispute in the suit was settled by filing such a settlement before the Bhadohi Court. In Clause 2 of the Settlement (Official English Translation of Hindi) it was agreed between the parties that the flat and Chawl situated at Bombay were exclusively owned by the defendant and Shop No. 7 was to be exclusively owned by the plaintiff. It was further provided that both the parties were required to get the legal formalities completed in that respect in Bombay. We are not concerned with the remaining part of the Settlement which of course included the items of Verandah and the Tractor. The Bhadohi Court accepted the consent terms and instead of deciding the case on merits disposed of the suit in terms of the aforesaid consent terms and passed a decree to that effect.
3. Pursuant to the aforesaid decree passed by the Bhadohi Court the plaintiff filed the above Execution Application to execute the Bhadohi decree by getting it transferred to this Court for execution qua the shop situated in Bombay. The plaintiff took all the steps to execute the said decree against the defendant and executed the decree on 28-10-1999 by removing the defendant from shop premises pursuant to the decree passed by the Bhadohi Court in Suit No. 60 of 1998.
4. Being aggrieved by the execution of the Bhadohi Court’s decree the defendant has filed the present Chamber Summons to get the execution set aside and for restitution of the shop premises in possession of the defendant to the extent of his 1/2 share. Shri Dube the learned Advocate for the defendant has submitted that the shop premises was not the subject matter of the Bhadohi suit though the decree includes the properties other than the subject matter of the suit i.e. Verandah and the Tractor. From the record it is clear that the Bombay Shop was not the subject matter of the Bhadohi suit though it formed part of the decree. According to Shri Dube such a decree cannot be enforced as against the properties which did not form part of the suit unless such a decree is registered under the mandatory provisions of section 17(1)(2) of the Registration Act. According to him, the decree could be executed without registration only to the extent of the subject matter of the suit i.e. Verandah and the Tractor and not against any other property including Bombay Shop. Section 17(1) of the Registration Act enumerates the documents on which registration is compulsory. Section 17(2) carves certain exceptions to Clauses (b) and (c) of section 17(1). Sub-clause (vi) of sub-section 17(2) reads as under:
(vi) any decree or order of a Court (except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceedings); or
It is therefore clear that a decree or an order of Court is not compulsorily required to be registered as provided under section 17(1) of the Registration Act. There is, however, one exception made, that is, if a decree or an order of the Court in terms of settlement or compromise between the parties includes the immovable properties other than the subject matter of the suit or proceeding, in that case, such a decree or order will not get the benefit of exception from section 17(1) of the Act. Such a decree or order will have to be registered as any other document which is enumerated in section 17(1) of the Act for compulsory registration. In our case it is an admitted fact that the Bhadohi Decree has not been registered under the Registration Act. Section 49 would therefore be attracted which provides for the consequences of non registration of documents required to be registered. This section reads as under :
49. Effect of non-registration of documents required to be registered.—No document required by section 17 (or by any provision of the Transfer of Property Act, 1882 (4 of 1882,)) to be registered shall-
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power,
unless it has been registered:
(Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (1 of 1877), or as evidence of part performance of a contract for the purposes of section 53-A of the Transfer of Property Act, 1882 (4 of 1882), or as evidence of any collateral transaction not required to be effected by registered instrument.)
In view of the Bhadohi decree not having been registered it cannot affect the Bombay Shop which forms part of the decree.
5. I do not find any substance in the submissions of Shri Pathak, the learned Advocate for the original plaintiff that in the body of the suit the Bombay property was clearly described as the joint family property and therefore, it cannot be said that the Bombay shop was not the subject matter of the decree. Though it is a fact that description of the joint family property is found in the plaint, the prayers were confined only to the property in the form of the Verandah and the Tractor. Mere mentioning of some properties without seeking any relief qua such properties in the prayers it cannot be said that even the described properties would be the subject matter of the suit. The subject matter of the suit can only be that for which reliefs are sought or prayed for. If there are no prayers or reliefs it cannot be said that whatever is enumerated or averred in respect of the other properties they would also be the subject matter of the suit. The test to find out what is the subject matter of the suit is simple. Had the parties in our case not filed a settlement or compromise what decree the Court would have passed? Surely the decree would have been confined to the prayer clauses and the property mentioned in the prayer clauses. The decree would have been only in respect of the Verandah and the Tractor and it could never have been for the Bombay Shop or any other property beyond the Verandah and the Tractor. The prayers made in the suit alone can be considered to indicate the subject matter of the suit. The subject matter of the suit cannot travel beyond the prayers in the suit. The Bhadohi decree has not been registered it cannot be enforced or executed and therefore, according to me the defendant is entitled to the relief of setting aside the execution orders and for restitution of the Bombay Shop to the extent of his 1/2 share.
6. Shri Pathak the learned Advocate for the plaintiff has submitted that the defendant ought to have approached the Court of first instance i.e. the Bhadohi Court which passed the decree and that this Court will have no jurisdiction to undo the execution. In support of the submission he has relied on a judgment of the Supreme Court in the case of Neelathupara Kummi Seethi Koya Phangal (dead) by L.Rs. v. Montharapall Padippua Attakoya and others, . In this case the Supreme Court in the facts before it has clearly laid down that the transferee executing Court to whom the decree transferred is not competent to entertain application for restitution under section 144 of the Civil P.C. I am afraid this ruling could not be attracted in the present case. The Supreme Court was interpreting the scope of section 144(1) of the C.P.C. which talk of an application for restitution to lie when the decee executed is reversed or followed or modified. In our case no such situation has arisen. The Bhadohi decree has not been reversed or followed or modified. The grievance of the defendant is that the unregistered decree has been executed against him and he has been dispossessed from the shop on the basis of an inexecutable or unenforceable decree by the executing Court in Bombay, the Transferee Court. According to me, the defendant’s grievance is justified. Such a case was not before the Supreme Court as it was not considering the case of an inexecutable or an unenforceable decree executed by the executing Court. I fail to understand how the Court of first instance i.e. the Bhadohi Court would act in any manner in the present case. The illegality committed is by the Bombay Executing Court and that illegality will have to be cured by that Court itself.
7. On the contrary Shri Dube the learned Advocate for the defendant has relied on a judgment of Orissa High Court in the case of Jogi Das and others v. Fakir Panda, . The learned Single Judge of the Orissa High Court has held that a compromise decree in respect of the immovable property not the subject matter of the suit is not enforceable if it is not registered. The learned Judge has observed that such a decree is not enforceable though it would be a piece of evidence of the contract between the parties. This case clearly supports the defendant. Shri Dube has also relied on another judgment of the Supreme Court in the case of Bhoop Singh v. Ramsingh Major and others, . The Supreme Court was considering the scope of the very section with which we are presently concerned i.e. section 17(2)(vi) of the Registration Act. The Supreme Court has very succinctly analysed and summarised the legal position in paragraphs 16, 17 and 18 which reads as under :–
16. We have to view the reach of Clause (vi), which is an exception to sub-section (1), bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a Court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value of Rs. 100/- or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embeded in the decree or order.
17. It would, therefore, be the duty of the Court to examine in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the Court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in praesenti in immovable property of the value of Rs. 100/- or upwards in favour of other party for the first time, either by compromise or pretended consent. If later be the position, the document is compulsory registerable.
18. The legal position qua Clause (vi) of section 17(2) can, on the basis of the aforesaid discussion, be summarised as below :
(1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration.
(2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs. 100/- or upwards in favour of any party to the suit, the decree or order would require registration.
(3) If the decree were not to attract any of the clauses of sub-section (1) of section 17, as was the position in the aforesaid Privy Council and this Court’s cases, it is apparent that the decree would not require registration.
(4) If the decree were not to embody the terms of compromise, as was the position in Lahore case, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of the compromise in question.
(5) If the property dealt with by the decree be not the “subject matter of the suit or proceeding”, Clause (vi) of sub-section (2) would not operate, because of the amendment of this Clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated.”
From the above discussion the conclusion is inevitable that the Bhadohi decree in which the Bombay shop was not the subject matter of the suit and the same not been registered under the Registration Act is not an executable or enforceable document qua the Bombay shop to the extent of 1/2 share of the defendant in the shop. The executing Court had no jurisdiction and power to execute such an unregistered decree as against the defendant to dispossess him from the Bombay shop to the extent of his 1/2 share of the defendant.
8. In these circumstances the execution will have to be set aside and the same is therefore set aside. The plaintiff is hereby directed to restore the possession to the defendant to the extent of his 1/2 share in the Bombay shop forthwith. Chamber Summons is made absolute in terms of prayer Clauses (a) and (b). No order as to costs.
9. The learned Advocate for the plaintiff prays for stay of the order for two weeks. In view of the law point involved the operation of the order is stayed for four weeks. The plaintiff shall not create any third party rights in the shop for a period of six weeks herefrom.
10. Certified copy is expedited.
11. Parties to act on an ordinary copy of this order duly authenticated by the Chamber Registrar of this Court.