Patna High Court
Rautmal Baid Oswal And Anr. vs Rameshwar Lal Somani And Ors. on 31 July, 1952
Equivalent citations: AIR1953PAT340, AIR 1953 PATNA 340
ORDER
1. This rule was issued at the instance of two petitioners one of whom was the plaintiff in an action for dissolution of partnership and accounts and the other was defendant Second party in that action. The opposite parties before us were defendants first and third parties in the suit.
2. The rule is directed against an order of the learned Subordinate Judge of Madhipura, dated 30-3-1951, by which the learned Subordinate Judge asked the petitioners to pay further court-fees in the following circumstances. The suit, as I have already stated, was one for dissolution of partnership and for accounts. It was based on an unregistered deed of partnership, dated 3-7-1949, said to have been executed by the plaintiff, the defendant first and the defendant second party for the purpose of carrying on a business in the name and style of Sri Hanuman Rice and Oil Mill at a place called Murliganj. It was alleged by the plaintiff that he had contributed a sum of Rs. 72,000/- odd towards the assets of the partnership business. The plaintiff's case was that a sum of Rs. 83,000/- odd was due to him and he paid court-fees on that amount. The suit was based on the allegation that the plaintiff had determined the partnership by giving notices to the defendants on 17-1-1950. The defendant second paity, it was alleged, had contributed about Rs. 62,000. As he did not join as a plaintiff, he was put in the category of a defendant.
3. On the 1st March, 1951, a petition of compromise was filed on behalf of all the parties. This petition of compromise recited that the assets of the Rice and Oil Mill at Murliganj in the shape of machinery etc. were valued at Rs. 1,06,881/- odd. The parties agreed that the entire assets were to be given to the plaintiff and the defendant second party. The plaintiff and the defendant second party paid Rs. 25,000 in cash to the defendants first and third parties. With regard to balance out of Rs. 1,06,881/- a sum of Rs. 58,820/- was set off in full satisfaction of the dues of the defendant second party, and a sum of Rs. 23,060/- odd was set off in part satisfaction of the claim of the plaintiff. The parties further agreed that for the balance of the dues of the plaintiff, a decree for Rs. 60,000/- might be passed against the defendants first and third parties. The parties prayed that the suit be disposed of in terms of the petition of compromise.
4. The learned Subordinate Judge took the view that the consent decree which the parties wanted him to pass required registration inasmuch as the machinery etc. which were to be given to the plaintiff and defendant second party were immovable properties within the meaning of the Transfer of Property Act and the Registration Act. On calculation the learned Subordinate Judge found that the charges of registering a sale-deed for immovable properties worth Rs. 1,06,881/- would be Rs. 2,775/-. He directed the plaintiff and the defendant Second party to pay court-fees worth Rs. 2,775/-. He further directed the defendant second party to pay court-fees worth Rs. 2,505/15/- on the sum of Rs. 58,820/- odd which were the dues of the defendant second party and were satisfied by one of the terms of the compromise petition. The learned Subordinate Judge staled that, on payment of the court-fees mentioned above, necessary orders would be passed on the compromise petition.
5. The learned Government Advocate appearing for the petitioners has contended before us that the learned Subordinate Judge acted without jurisdiction in refusing to record the compromise unless further court-fees were paid. He has contended that no court-fees were payable, and the learned Subordinate Judge was wrong in asking the parties to pay court-fees before the compromise was recorded.
6. In our opinion, the contention of the learned Government Advocate is correct and should be accepted. Clause (vi) of Sub-section (2) of Section 17 of the Registration Act lays down that nothing in Clauses (b) and (c) of Sub-section (1) applies to 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. Assuming that the machinery etc. of the Rice and Oil Mill was immovable property inasmuch as they were embedded in earth, the further question which fell for consideration was whether the property was outside the Subject-matter of the suit. The suit was a suit for a dissolution of partnership and for accounts. It has been conceded before us on behalf of the parties, as also by the learned Government Pleader who appeared for the State of Bihar, that the machinery etc. were part of the assets of the partnership business. Therefore, the property which was the subject-matter of the compromise was not outside the scope of the suit. That being the position, Clause(vi) of Sub-section (2) of Section 17 of the Registration Act clearly applied, and the learned Subordinate Judge had no jurisdiction to ask for registering charges in the shape of court-fee's etc.
7. The learned Government Advocate has also contended, not without some substance, that the proper order in a case where the consent decree requires registration is to record a direction that the decree Shall be registered and then leave the parties who claim under the decree to take steps for registration in accordance with the provisions of Sections23 and 32 of the Registration Act. We think that this application can be disposed of on the short ground that the subject-matter of compromise was not outside the scope of the suit and the consent decree did not require registration.
8. Accordingly, we allow the application and set aside the order of the learned Subordinate Judge directing the petitioners to pay further court-fees. The learned Subordinate Judge will now proceed to consider the petition of compromise in accordance with law. In the circum stance's of the case there will be no order for costs.