Dismissed

Sri C N Mahesh v. Sri C K Nanjundaiah

Karnataka HC13 Dec 2021WP/7765/2021

Case brief

AI extract

What is this about?

This writ petition challenged an appellate court order rejecting registration of a compromise decree. The High Court applied the Supreme Court in Mohammede Yusuf to hold that a compromise decree concerning the suit's own subject-matter is exempt from registration under Section 17(2)(vi) of the Registration Act.

What did the court decide?

None; observations made that the compromise decree does not require registration as it concerns the subject-matter of the suit.

Sri C N Mahesh Vs Sri C K Nanjundaiah — Civil Procedure and Limitation | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF DECEMBER 2021

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO. 7765/2021 (GM-CPC)

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BETWEEN :

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SRI C. N. MAHESH S/O NINGEGOWDA @ CHIKKONU AGED ABOUT 52 YEARS R/AT CHANNAKEGOWDANADODDI VILLAGE, KASABA HOBLI HANAKERE DAKHALE MANDYA TALUK - 571 401

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... PETITIONER

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(BY SRI. RAMESHA H E., ADVOCATE)

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AND :

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SRI C K NANJUNDAIAH AGED ABOUT 78 YEARS PROP VIJAYANANDA MILITARY HOTEL SUGAR FACTORY CIRCLE MANDYA CITY - 571 401.

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SMT JAYASHEELAMMA W/O C K NANJUNDAIAH AGED ABOUT 73 YAERS 1^ST CROSS, ASHOKNAGAR NEAR NURSING HOME MANDYA - 571 401.

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... RESPONDENTS

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(BY SRI. VEERESHA K., ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE IN R.A.NO.165/2006 DATED 9.8.2016 VIDE ANNEXURE-E.

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THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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The petitioner and the respondents are parties to the proceedings in R.A. No.165/2006 on the file of the Additional District Judge, Mandya [for short, ' the appellate Court ']. The petitioner, who is the appellant, has filed this petition impugning the appellate Court's order dated 09.08.2016. The appellate Court by this impugned order has rejected the respondents' application under Section 151 of the Code of Civil Procedure, 1908, for a direction to send the compromise decree drawn in such proceedings for registration with the office of the Sub-Registrar, Mandya under the prvisions of the Registration Act, 1908 [for short, 'the

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Registration Act' ]. The appellate Court, in rejecting the application as aforesaid, has opined that the question of registering the compromise decree does not arise because such decree is not a final decree for partition and there is no provision in law for registration of a decree for declaration.

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Though the parties have presently filed a joint memo stating that they have agreed to approach the jurisdictional Sub-Registrar for registration of the compromise decree and to assist each other in getting the khata for the respective portions transferred, the learned counsel for the parties rely upon a decision of the Hon'ble Supreme Court in 'Mohammede Yusuf and Others v. Rajkumar and Others' reported in [2020] 10 SCC 264 to contend that the compromise decree would not require registration in view of the provisions of Section 17 of the Registration Act and the petition could

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be disposed of with the necessary observations in this regard so that the parties could avail their remedies accordingly.

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The parties to the appeal proceedings in R.A. No.165/2006 have settled their rival claims to the subject properties by way of a compromise which is accepted by the appellate Court on 27.03.2010. The parties, by this compromise, have settled their mutual claims in properties that are subject matter of the suit in O.S. No.236/1995 on the file of the Additional Civil Judge [Sr. Dn.,], Mandya as also the suit in O.S. No.218/1995 on the file of the I Additional Senior Civil Judge and CJM, Mandya. In fact, it is seen from the records that to facilitate such compromise and settlement of rival claims, some of the persons who are parties to the proceedings in O.S. No.218/1995 are impleaded in the subject appeal in R.A. No.165/2006.

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One of the terms of the compromise in the appeal in R.A. No.165/2006 is that with this settlement, the parties shall seek disposal of the other suit in O.S. No.218/1995. The relevant part of the compromise petition dated 27.03.2010 reads as follows:

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"F jÃw F ªÀÄÆgÀÄ d£À¥ÀPÀëUÁgÀgÀ £ÀqÀÄªÉ EzÀÝ ©eÁdÓ¸ÉAiÀÄÆ FzÁªÉAiÀÄÄ ¥ÀæPÀgÀt ªÀÄvÀÄÛ ªÀÄAqÀåzÀ C¥ÀgÀ ¹«¯ï eÉqïÓ (»jAiÀÄ«¨sÁUÀ) £ÁåAiÀiÁ®AiÀÄzÀ C¸À®Ä zÁªÁ 218:95 gÀ «µÀAiÀÄªÀÇ ¸ÀºÀ EªÀgÀUÀ¼À £ÀqÀÄªÉ §UÉºÀj¢gÀÄªÀÅzÀjAzÀ FgÁf PÀgÁgÀ£ÀÄß ¸ÀzÀj C¸À®Ä zÁªÁ 218:95 gÀ°è ºÁdgÀÄ¥Àr¹ D PÉÃ¹£À ªÁ¢ ZÀ£ÀßAPÉÃUËqÀ ¸ÀzÀj zÁªÉAiÀÄ£ÀÄß 1 ªÀÄvÀÄÛ 2 £ÉÃ JzÀÄgÀÄ D¦Ã®ÄzÁgÀgÀ «gÀÄzÀÝ zÁªÉAiÀÄ£ÀÄß »AzÀPÉÌ ¥ÀqÉAiÀÄ®Ä ªÀÄvÀÄÛ CªÀ±ÀåPÀvÉ EzÀÝgÉ ¸ÀzÀj PÉÃ¹£À G½zÀ ¥ÀæwªÁ¢UÀ¼À «gÀÄzÀÝ ªÀÄÄAzÀÄªÀgÉAiÀÄ®Ä F ªÀÄÆ®PÀ M¦àgÀÄvÁÛgÉ ".

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After this compromise decree in R.A.

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No.165/2006, the other suit in O.S. No.218/1995 is disposed of by Judgment dated 14.03.2016. The civil Court in this Judgment dated 14.03.2016 has recorded in paragraph 21 that the suit as against all the defendants except the defendant Nos.2-4 is dismissed in view of the compromise inter se parties. It is as such

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obvious that the parties to the proceedings in R.A. No.165/2006 have settled their respective claims in two immovable properties that are subject matter of the suit in O.S. No.236/1995 and O.S. No.218/1995 by common consensus, and consequent to this common consensus, the suit in O.S. No.218/1995 is dismissed insofar as these two subject properties.

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The Hon'ble Supreme Court in Mohammede Yusuf's case [supra] has held as follows:

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"A compromise decree passed by a Court would ordinarily be covered by Section 17(1)(b) but subsection(2) of Section 17 provides for an exception for 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 proceeding. Thus, by virtue of sub-section(2)(vi) of Section 17 any decree or order of a Court does not require registration. In sub-clause(vi) of subsection (2), one category is excepted from sub-

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clause(vi), i.e., 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. Thus, by conjointly reading Section 17(1)(b) and Section 17(2)(vi), it is clear that a compromise decree comprising immovable property other than which is the subject matter of the suit or proceeding requires registration, although any decree or order of a Court is exempted from registration by virtue of Section 17(2)(vi)."

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The Hon'ble Supreme Court has also finally held that unless a decree is covered by the exception contained in Section 17(2)(vi) of the Registration Act [because it includes a property that is not subject matter], every decree of a court would be exempt from registration in view of the exception carved out to the general rule under Section 17(1) of the Registration Act.

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In the present case, the compromise decree in R.A. No.165/2006 is in respect of immovable

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properties that are subject matter of two suits and consequent to the compromise, the suit in O.S. No.236/1995 is settled at the appellate stage in R.A. No.165/2006 and the other suit in O.S. No.218/1995 is later dismissed insofar as the subject properties and the concerned defendants. Therefore, this Court must opine that the compromise decree in R.A. No.165/2006 would not require registration under the provisions of the Registration Act, and the parties must be at liberty to seek change of revenue records to the respective properties consequent to such decree without the registration thereof.

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The petition therefore, stands disposed of with the aforesaid observations.

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Sd/JUDGE

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AN/-

Sri C N Mahesh v. Sri C K Nanjundaiah

Case brief

What is this about?

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Sri C N Mahesh v. Sri C K Nanjundaiah

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