Modi, J. - (1.) THIS is a judgment-debtor's appeal in an execution matter and arises under the following circumstances. Decree-holders Chimniram and others had filed a suit against the appellant for the recovery of a sum of Rs. 10,670/- in the court of the District Judge, Balotra. The parties then arrived at a compromise on the 19th of October, 1955, and a consent decree was obtained accordingly on the 31st October, 1955. The terms of the compromise were as follows : 1. A sum of Rs. 3,000/-was agreed to be adjusted against the sale of a house which the judgment-debtor had undertaken to have made by his brother Jeth Mal in favour of the decree-holders. 2. Two sums of Rs. 2,500/- and Rs. 1,000/- were to be adjusted against the sale of the house and a shop respectively belonging to the judgment debtor the particulars of which properties were mentioned in the compromise. 3. A gold 'dora' of the value of Rs. 1,500/- had been given to the decree-holders by the judgment-debtor. 4. A sum of Rs. 2,000/- had also been given in cash. 5. Claim to a sum of Rs. 295/- was relinquished by the decree-holders. 6. The remaining amount of Rs. 375/- was agreed to be paid in cash by Kati Sudi 15, Samwat 2012. It was further agreed that the judgment-debtor will have the necessary documents executed with respect to the immovable properties mentioned above and registered within 10. days from the date of the compromise i. e. 19th of October, 1955, and will handover possession thereof to them. It was also agreed that all costs of registration and on account of stamps were to be defrayed by the decree-holders, and, that on the judgment-debtor's completing sales by registration and delivery of possession, the decree-holders will give a full and final receipt to the judgment-debtor. It appears that on the 21st October, 1955, the judgment-debtor made an application to the executing court that he was prepared to complete the sales with respect to the immovable properties mentioned above but the decree-holder was employing evasive tactics and therefore the decree should be executed as agreed to between the parties. We do not have the order of the court which was passed on this application, but it seems that what it said was that it was unable to help the judgment-debtor presumably because the decree-holders had not applied for execution. Nothing seems to have happened for some time, when, just before the limitation was to expire, the decree-holders made an application for execution of the decree on October 7, 1958, in which they prayed that the judgment-debtor be called upon to execute the sale deeds in compliance with the decree as per drafts submitted by him. It was now the judgment-debtor's turn to object to this. The main objections raised by him were two in number (i) that the decree contained terms which did not relate to the suit and (ii) that one of the houses comprised in the decree belonged to his brother Jeth Mal and that it was not within his power to compel him to execute a sale-deed with respect thereto in favour of the decree-holders. Both these objections were repelled by the learned District Judge by his order dated the 16th November, 1959, and the learned Judge directed that the terms of the decree providing for the execution and registration of sale-deed, with respect to the various properties mentioned in the documents be enforced as prayed for in the execution application, and that the necessary expenses in that connection be deposited in court by the decree-holders. At this stage we may also mention that the learned District Judge being of the opinion that by some oversight the decree-sheet prepared in the court of District Judge did not embody the full terms of the compromise inasmuch as following portion therein was somehow omitted from mention, viz.
(2.) FMDZH dh ckdh rkehy glc 'kjkjr ds uhps eqtc gksxha tks eqnk;yk eqnb;ku dks rk- 19-10-55 ls jkst ds vunj dj nsxka Ordered that the same be duly inserted, thereby. Aggrieved by this decision the judgment-debtor has come up in appeal to this Court. 2. The principal contentions raised by learned counsel for the judgment-debtor before us are two in number 1. That the decree passed by the District Judge in so far as it pertained to matters not relating to suit was not executable, and which parts were concerned with the execution of sale-deeds and the registration thereof with respect to the various immovable properties mentioned in the compromise, and that the proper remedy of the decree-holders for enforcing these terms was by a separate suit, and not by the machinery of execution in the present suit itself. 2. That the decree was compulsory registrable inasmuch as it created title with respect to the properties in question in favour of the decree-holders, and having been not so registered was incapable of being enforced in execution. While elaborating the first point, learned counsel for the appellant further argued that the decree, as it was framed by the learned District Judge, i. e. , before it was amended, contained only as its operative part the term thereof which related to the demand of Rs. 375/- by a certain date, and that the rest of it was an entirely distinct part of the decree, and it was on that account that it was mentioned under a separate head in the decree-sheet, and as a sort of an adjunct to the main part of the decree, and learned counsel therefore strongly contended that as this part did not really relate to the suit it should not be allowed to be enforced by execution. 3. On the other hand, learned counsel for the respondents-decree-holders equally strenuously contended before us that the decree in this case as passed by the learned District Judge did not really make any distinction between certain parts thereof which were to be enforced by execution and certain other parts which were not, and that, according to its ordinary tenor. , the whole of it was intended to be so enforced, and as the judgment-debtor did not raise any objection to the form and manner of the decree (which was passed or intended to be passed in this case) by review or by appeal in the main suit, it was not open to him to object in the execution department that certain parts of this decree were not capable of being enforced in execution and therefore the whole decree was enforceable. 4. This brings us to a consideration of the question as to what was the precise decree that was passed in this case i. e. whether the learned District Judge had so framed his decree that only certain terms of the compromise were to constitute its operative part and the rest of them were to be relegated to a different position. We have given this question our most careful and anxious consideration as it lies at the very base of the rival contentions which have been put before us in this appeal; and, on the whole, we have no hesitation in saying that we think that the decree that was either actually passed in the case or which was intended to be so passed did not make any distinction between the various parts thereof in the sense that some of them formed operative part of the decree and others were to be treated as inoperative part thereof. In this connection the most important consideration which has weighed with us is that contained in paragraph (4) of the judgment of the trial court dated the 31st October, 1955, which is reproduced at page 10 of the paper-book, and, this paragraph, after clearly mentioning that a decree for the sum of Rs. 375/- was being passed in favour of the plaintiff and against the defendant in accordance with the terms of the compromise and that this sum was to be paid by Kati Sudi 15 Samwat, 2012, it further went on to state that compliance with the rest of the decree i. e. for the remaining amount was to be made as mentioned thereafter in accordance with the terms of the compromise, and that all these terms were to be carried out within 10 days from the 19th of October, 1955. If the intention of the learned Judge who passed the decree was to have divided it into two portions (1) consisting of such terms which were to be the operative part thereof, and (2) of the non-operative part, then we have no hesitation in saying that he would not have said what he did in paragraph (4) of his judgment. It only remains for us to point out in this connection that the actual decree to be passed in this case should have been in accordance with the judgment itself, and if by some inadvertence, it failed to bring out the correct effect of the judgment, it was to that extent erroneous, and it must be read in harmony with the judgment, and we are in entire agreement with the learned District Judge when he so read the decree by inserting therein the portion to which we have drawn attention above and which by some accidental or clerical mistake had remained to be incorporated in the decree-sheet prepared in the trial court. 5. This is not to say that if the learned District Judge who passed the decree thought that certain parts of the compromise did not in his opinion relate to the suit, he could not refuse to incorporate them in the decree, and we would invite attention in this connection to Or. 23 r. 3 of the Code of Civil Procedure which governs the point. This rule reads as follows : " Compromise of suitwhere it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, cornpromise or satisfaction to be recorded, and shall pass a decree Jin accordance therewith so far as it relates to the suit. " We should like to take the opportunity of pointing out that the requirements of this rule are of very great importance when a suit happens to be adjusted wholly or in part by a lawful agreement or compromise between the parties. And when this is done, it is the duty of the court to see which parts of the compromise relate to the suit and which do not, and it should confine its decree to such parts only as do relate to the suit, and so far as the remaining parts thereof are concerned, these should be embodied in the decree itself or in a separate schedule to the decree but in either case care should be taken to clearly mention only such terms of the compromise in the operative part of the decree as relate to the suit but not the others. We have no doubt that if trial courts at the time of passing of such decrees act with due care and caution, much litigation which otherwise arises can well be avoided. Be that as it may, as we have already stated, we are definitely of the opinion that in this particular case the learned trial Judge does not seem to us to have made any such distinction between the various parts of the terms by which the suit between the parties fell to be adjusted, and the contention raised by learned counsel for the appellant to the contrary does not seem to us to have any force. We feel greatly fortified in coming to this conclusion by the further circumstance that even the judgment debtor himself made an application to the trial court on the 21st of October, 1955, that he was ready, to comply with the various terms of the decree which are now challenged before us as being unrelated to the suit. 6. The next question which then arises is whether in view of the conclusion to which we have come above the judgment-debtor can lawfully contend before the executing court that it should refuse to execute such parts of the decree in question which according to his submission do not relate to the suit. But this at once brings in a consideration of the further question whether an executing court can go behind a decree, subject, of course, to certain well-recognized exceptions to which we will refer presently. We may here refer to the following cases which have a bearing on the point. 7. In S. Sabapathi Pillay vs. Vanmahalinga Pillai (l) it was held that where a certain term, which cannot properly be made part of a compromise decree, because it goes beyond the subject matter of the suit, has once been made part of the decree, a party to the decree cannot, in execution, object to that term as not binding on him. It was further laid down that an objection to such a decree ought to be taken by way of appeal and cannot be urged when execution of the decree is sought. 8. In (Sahu) Shyam Lal vs. M. Shayam Lal (2) it is laid down that in cases where a part of the compromise does not, strictly speaking, relate to the suit and nevertheless the Court decides that it relates to the suit, and incorporates it into the operative portion and passes a decree in terms of it, the decree is not a nullity and nor one passed without jurisdiction, but would be binding upon the parties to the decree, and its validity cannot be questioned in the execution department, nor can any title derived under it be attacked. The same view appears to have been followed in Nizam Uddin vs. Ikramul Haq (3 ). 9. In Muhammad Ismail vs. Bibi Shaima (4) it was held that an executing court has no power to discuss the terms of the decree, and that an objection that one of the terms of a compromise decree was outside the scope of the suit was beyond its province to consider. 10. In Syed Musharaf Hussain and another vs. Agha Munawar Ali Khan and another (5) it was held that if once extraneous matters are allowed to be included in a decree without any objection on the part of the defendant, the executing Court cannot refuse to execute that part of the decree on the ground that it was extraneous to the subject-matter of the suit. 11. In Ambalal Chunthabhai Patel and another Vs. Somabhat Bakorbhai Patel (6) it was laid down that the objection that one of the terms of a compromise decree is outside the scope of the suit is not one for the executing court to consider, and that if the court had fallen into error in including that term in the operative part of the decree, the proper method of challenging it was by way of review or appeal in the main suit itself but the executing court was not competent to go into that objection. 12. The same principle was upheld in Gurbax Vs. Mansingh (7) and it is laid down that the executing court cannot refuse to execute the decree on the ground that one of the terms of the decree was outside the scope of the suit. 13. From the review of the case-law that we have made above, the general principle that is clearly deduecible is that where the court passing the decree on the basis of a compromise happens to pass a decree in accordance with the terms thereof, and, in doing so, not only includes in such decree the parts which relate to the suit but also those which do not, and no objection thereto is raised by the defendant either before that court or in appeal, then it is not open to the judgment-debtor in such a case to object to the execution of such a decree before the executing court though it contains certain terms which do not relate to the suit and should not therefore have been included therein. This view is based on the general principle that an executing court cannot go behind a decree but must exectue it as it stands. Apart from the reasons for this view which have been given in the various cases which we have discussed above, we should like to point out that an order recording or refusing to record a compromise is in itself appealable under clause (m) of rule 1 of Order 43 of the Code of Civil Procedure. It should therefore be perfectly possible for the defendant to raise such a controversy in appeal in the course of the suit itself. We should further like to invite attention to sub-sec. (3) of sec. 36 of the Code which provides that no appeal shall lie from a decree passed by the Court with the consent of parties. The object of the Legislature clearly appears from this provision to be that a consent decree shall not be appealable; and reading it with clause (m) of rule 1 of Or. 43 the correct legal position appears to us to be that if the defendant has any grievance against the recording of the compromise, which of course includes its terms, then it is for him to appeal from it, for if once that order becomes final and a decree is passed on the basis thereof, no appeal against such a decree can lie under sec. 96 (3 ). This object in our opinion will be wholly frustrated if a consent decree can be allowed to be challenged in execution on the ground that some of its terms do not relate to the suit. To this general rule, however, with all respect, we have to suggest a rider, and that is that where a decree suffers from an inherent want of jurisdiction in the court passing it, it can certainly be challenged in execution, and that principle in our opinion is perfectly well-settled (I. L. R. 1957) Rajasthan 366; A. I. R. 1954 Supreme Court 340 ). We may, however, make it clear that a decree cannot be said to suffer from an inherent want of jurisdiction simply because the court has incorporated therein certain terms of the compromise which do not relate to the suit along with others which so relate thereto, and, such a defect, assuming that it exists, is at the worst an irregularity which does not and cannot make the decree a nullity. There seems to be yet another principle to which the broad rule which has been laid down in the cases, to which we have referred above, is subject, and that is that where the decree passed by the court is incapable or impossible of execution, either in whole, or in part, it cannot but be allowed to be challenged in execution. Such a case, for example, would arise where the decree enjoins the performance of some act which the judgment-debtor cannot be compelled to perform in law, and that being so the decree has to be held as incapable of execution. Subject, therefore, to these considerations we are in respectful agreement with the principle which has been laid down in the cases discussed above, and we hold accordingly. 13. Now let us apply the principles we have enunciated to the facts of the present case. As we have already pointed out above, the trial court passed a comprehensive decree including all the parts of the compromise without making any distinction between its various parts such as those which related to the suit and those which did not. The defendant did not challenge this decree by review or appeal in the main suit. That decree therefore became final. It must follow, speaking broadly, that it is not open to the judgment-debtor to contend in execution that certain parts of this decree were not executable because they did not relate to the subject-matter of the suit itself. From the terms of the compromise that we have already given, it is clear that all these terms except the one which relates to the execution of a sale-deed by Jeth Mal, a brother of the judgment-debtor, who was not a party to the suit, are connected with him and him alone. The judgment-debtor therefore cannot be heard to say that the decree-holders should be compelled to file a separate suit for compliance with such terms of the decree which relate to him personally. The situation however stands radically differently so far as the completion of the sale of Jeth Mal's house is concerned. We have no manner of hesitation in saying that the appellant cannot be compelled to execute or obtain the execution of a sale-deed with respect to a property which obviously belongs to his brother. We therefore hold that the execution of this term of the decree must be refused. Learned counsel for the decree-holders submits that we should direct that the part of the decree may be executed as for a simple money debt. As this question, in the form in which it is sought to be placed before us, was not raised in the court below, we leave it open to be decided by the execution court, if and when it is raised before it. As for the rest, we see no objection whatsoever to the execution of the decree as it stands, and we hold accordingly. 14. This brings us to the second contention raised by learned counsel for the appellant-judgment-debtor that the compromise decree in this case was compulsory registrable and having not been so registered it is in-executable. Reliance is placed in support of this submission on sec. 17 (l) (b) read with clause (vi) of sub-sec. (2) of the same section of the Indian Registration Act. Our attention is also drawn in this connection to a bench decision of this Court in Ganesh Lal vs. Ramgopal and others (8) in which it was held that a compromise decree in a money suit by which a charge was created on immovable property was compulsory registrable. Sec. 17 (l) (b) provides in effect that all non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property are compulsory registrable. Sub -sec. (2) of this! section inter alia provides in its sixth clause that 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 is not exempt from the operation of the first sub-section which sets out the documents which are compulsorily registrable. The question, therefore, is whether the compromise decree in the present case squarely falls within the mischief of the aforesaid provision. Now it is true that the decree in this case is based upon a compromise. It is equally true that this compromise involves immovable properties which were not the subject-matter of the suit. That in our opinion does not conclude the matter; because, in order to sustain the objection as to registration, it must further be shown that the decree by itself partakes of the nature of an instrument which is compulsory registrable within the meaing of sub-sec. (l) of sec. 17. Now a careful perusal of the terms of the decree which we have set out in the beginning of our judgment clearly goes to show that the compromise decree in this case did not create or declare a right with respect to the properties in question, but is was contemplated between the parties that sale-deeds will have to be executed and registered before any title to these properties was to pass from the judgment-debtor to the decree-holders, and it was only on the registration of such deeds and the delivery of possession that the decree-holders could be called upon to pass a final receipt in satisfaction of the decree. In other words, the correct position was that the decree by itself was not enough to create any title in favour of the decree-holders with respect to the properties in question save to the extent that it gave them a right to have certain documents executed and completed in their favour. Upon the happening of such contingency alone, any title with respect to those properties could pass in favour of the decree-holders. Therefore the decree, if we may say so, provided for some thing in the nature of an agreement to sell, and quite clearly such an agreement was and is not compulsory registrable. Reference may be made in this connection to the Explanation to sec. 17 (2) which clearly provides that a document merely purporting or operating to effect a contract for the sale of immovable property does not require registration. In the view we take, therefore, we are definitely of the opinion that the decree in question was not compulsorily registrable, and we repel this objection also. 15. The net result is that we partly allow this appeal and modify the judgment and order of the learned District Judge and hold that the terms of the compromise decree in question shall be enforced by execution except to the extent of Jeth Mal's house. The respondents-decree-holders will be entitled to the costs of this appeal. .;