PULIMARATHINKEEL KATHEESA AND ANR. Vs. PUTHIAPURAYIL ASSEMA (DIED) AND ANR.
HIGH COURT OF MADRAS
Pulimarathinkeel Katheesa And Anr.
Puthiapurayil Assema (Died) And Anr.
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Ramaswami, J. -
(1.) THE short point for determination in this second appeal is whether with regard to a pre -1929 compromise which has been "recorded" and which covered the property involved in the suit, the compromise should have been registered. In my opinion, there are two good reasons why it need not be registered. First of all, the compromise itself is of the year 1927. Section 17(vi), Registration Act was amended by Act 21 of 1929 and for the words "and any award" the following words "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 proceeding" were substituted. This amendment has no retrospective effect. Secondly, I have just mentioned that the property which is the subject -matter of the compromise is also the subject -matter of the suit. It has been held by this Court in - - 'Annapurnamma v. : AIR1949Mad245 relying on a prior decision in - -'Ranganayaki Ammal v. Sampathkumaran',, AIR 1940 Mad 897 (B) that a decree affecting immovable property, which is the subject -matter of the compromise and which is also the subject -matter of the suit, need not be registered. It is on the foot of this distinction that this Court has issued H. C. P. Dis. 612 of 1936 which has been incorporated at pages 122 and 123 of the Civil Rules of Practice and Circular Orders, Vol. I (second edition, 1940) and framed question No. 2(f) in the Notes of Inspection of Subordinate Courts, Form No. 15 (see ibid Appendix III -L, page 345, Vol. II).
The Circular Order states:
"It has come to the notice of the High Court that in drafting a decree passed in terms of a compromise entered into between the parties the procedure prescribed in Order 23, Rule 3 and Order 20, Rule 9 , Civil P. C. is not followed in some Courts, and that where a compromise includes matters which do not form part of the subject -matter of the suit it has been the practice to include all the terms of the compromise in the operative portion of the decree. This practice, besides being opposed to the abovementioned provisions of the Civil Procedure Code, is said to present some difficulty to the Registration Department in ascertaining whether property not forming part of the subject -matter of the suit has or has not been included in the compromise decree.
The High Court directs that, in drafting compromise decrees, Courts should strictly observe the provisions of Order 23, Rule 3 and Order 20, Rule 9, Civil P. C., and that the second of the two methods indicated by their Lordships of the Judicial Committee in - -'Hemantha Kumari v. Midnapur Zamindari Co.',, AIR 1919 PC 79 (C) be adopted. After reciting that the compromise set out in the schedule refers to not only the subject -matter of the suit but also to certain properties extraneous to it, the decree should in the operative portion deal only with the subject -matter of the suit, which will be clearly and fully described as is done in the plaint schedule or schedules. The compromise itself should be introduced as a schedule to the decree."
The point of law has therefore been correctly decided by both the Courts below and the second appeal has got to be and is hereby dismissed with costs. No leave.;
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