ATAAT HUSAIN Vs. MUSHTAQ ALI

JUDGEMENT

(1.) This is a second appeal arising out of execution proceedings. The appellant in this Court is the defendant judgment-debtor. The plaintiff-respondent, Mushtaq Ali, instituted a suit against the appellant for recovery of Rs. 2,000 as his share of the dower debt payable to a deceased lady named Bashir Begum. The relationship between the parties to this case and Bashir Begum does not appear from the judgment of the lower Court and the counsel are unable to give it. What probably happened was that the plaintiff was entitled from the defendant to the whole or part of dower debt due to Bashir Begum from the assets of some one whose interests have devolved upon the parties by inheritance. The parties arrived at a compromise which was embodied in a petition presented before the Court. It recited that parties are in possession of Bashir Begum's property in equal shares and went on to provide that, in satisfaction of the plaintiff's claim, the zamindari would thenceforward be owned by the plaintiff to the extent of three-fourth and by the defendant to the extent of the remaining one-fourth only. The patwari was to make an actual division of the Hands to be allotted to the parties to make up their respective shares. Such a division was made and embodied in the decree. The compromise further declared that it would be open to the plaintiff to obtain registration of the decree when passed on the basis of the compromise. There are other provisions in the compromise relating to the zamindari affected by the compromise and to the accrual of exproprietary rights in the sir lands cultivated by them. The Court gave effect to the compromise and passed a decree in terms thereof. The decree is dated 25 August 1933. The plaintiff did not have the compromise decree registered.

(2.) Subsequently he applied for execution of the decree so far as it awarded to him Certain plots making up his three-fourth hare in the zamindari. The defendant objected to the application for execution, inter alia, on the ground that the decree not having been registered was incapable of execution. Both the lower Courts have overruled the objection and allowed the execution to issue. In the present second appeal the sole question argued is that the decree not having been registered, it does not affect the property to which the compromise related. In my opinion this contention must prevail. Section 17(2)(vi), Registration Act, as amended by Act 21 of 1929, makes it clear that a decree or order expressed to be made on a compromise and comprising immoveable property other than that which is the subject matter of the suit or proceeding is compulsorily remittable, if it falls within the purview of any of the clauses to Section 17(1). The subject matter of the suit, as already stated, was a simple claim for money. The compromise transferred from the defendant to the plaintiff rights in the zamindari which belonged to the defendant to the extent of half of his share. It is not disputed that the value of half of the defendant's share, that is one-fourth of the entire property, is far in excess of Rs. 100. There can be no manner of doubt about the compromise and therefore the decree created or assigned rights in immoveable property of the value of over Rs. 100. It follows that the decree based on the compromise was compulsorily registrable.

(3.) The next question is whether the effect of non-registration is to make it incapable of execution so far as it affects the immoveable property therein mentioned. Section 49, Registration Act, clearly lays down that no document required by Section 17 to be registered shall affect any immoveable property comprised therein. It is thus clear that the decree does not effectively transfer any interest in the immoveable property therein mentioned from the defendant to the plaintiff. This being so, it cannot be given effect to according to its terms. It is contended by the respondent, and this contention prevailed in the lower appellate Court, that the Court executing the decree cannot go behind it and that every decree must be executed according to its apparent tenor. It is said that the validity of the decree or the jurisdiction of the Court which passed it should not be allowed to be controverted in the Court which is called upon merely to execute the decree. Generally speaking this proposition may be correct. But it should not be carried too far and there are obvious cases in which a Court executing the decree may have to enquire into questions affecting the character of the decree. The lower appellate Court seems to have based its view on Cantonment Board v. Kishan Lal A.I.R. 1934 All. 309. One of the learned Judges has certainly observed that the Court executing the decree cannot go behind it; but the learned Chief Justice who Wrote the leading judgment has shown that the proposition that the Court executing the decree cannot go behind it should not be carried too far and he has illustrated cases in which the validity of the decree or the jurisdiction of the Court which passed it may have to be enquired into. Moreover it seems to me that in this case the Court is not required to go behind the decree. It is apprised of the fact, which is common ground, namely that the decree has not been registered and the decree itself shows that it is based on a compromise which affects immoveable property of the value of Rs. 100. In holding that the decree should have been registered and not having been registered it is incapable of execution, the Court cannot be said to be going behind the decree. To hold otherwise will be to make Section 49, Registration Act, completely nugatory. If the contention is right then in almost every case in which a decree should have been registered but was not registered it can be executed and any objection based on Section 49, Registration Act, can be met by the proposition that the Court cannot go behind the decree. I do not think that such a position is tolerable. I have no doubt that the Court can take cognizance of the question whether the decree was compulsorily registrable and whether in the absence of registration it does not affect the property awarded by it. If the Court arrives at the conclusion that the decree does not affect the immoveable property which the decree-holder seeks to recover in execution of the decree, the Court must declare that the decree is not capable of execution. The result is that this appeal succeeds. It is accordingly allowed and the plaintiff-respondent's application for execution of the decree is dismissed with costs throughout. Leave to appeal under the Letters Patent is refused.