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(a) That this Hon'ble Court be pleased to declare that decree dated 8.12.1995 passed by this Hon'ble Court is not executable/unenforceable.
(b) That this Hon'ble Court be pleased to declare that the Decree dated 8.12.1995 passed by this Hon'ble Court is not executable/unenforceable in respect of the flat No. 2501/A situated on the floor of Walkeshwar Om Vikas Co-operative Housing Society, Walkeshwar Road, Mumbai 400 006.

In addition to the above main prayers interim prayers are also sought for by the applicants. In support of their prayers, the applicants have filed an affidavit of one Shri Chittaranjan Shah. In nutshell, the applicants have prayed for a declaration that the consent decree is not executable or enforceable and further it is not executable or enforceable in respect of the suit flat. Shri Ashok Thapper, the plaintiff has filed a detailed affidavit In reply, vehemently opposing the chamber summons. He has enumerated in Exh. A the dates and events which took place after 8th December, 1995 i.e. the date of the consent decree filed in the above three summary suits, wherein the defendants had agreed to pay to the plaintiff a sum of Rs. 4.5 crores by 30th September. 1996. There is no dispute about the dates and events given in the Exh. A of the affidavit of Shri Thapper. Shri Pravir Diwan, the learned Counsel for the applicants, however, suggested that there were some more details which are not given in the list of dates and events, though, he did not dispute the correctness of the chronological events stated in the exhibit to the affidavit in reply. It appears that the defendants, themselves, moved the Court for extension of time to pay and both the parties once again filed consent minutes of the order before this Court (A. P. Shah, J.). By the said order the defendants were to pay a sum of Rs. 1.50 Crores by 31st December, 1996 and the balance on or before 31st March, 1997. Accordingly the defendants have in fact paid the aforesaid amount by four instalments to the plaintiffs, but they failed to pay the balance amount as agreed. Their failure to pay as per the consent minutes of the order finally attracted the step of auction sale of their flat. Preliminary rituals before the auction were taking place in the office of the Court Receiver. In the process, by a letter dated 6th November, 1997 addressed by the Advocate for the defendants to the Advocates for the plaintiffs, the defendants informed that they were making arrangements to pay the entire balance dues to the plaintiffs at the earliest. The movable and immovable properties of the defendants were attached as per the warrant of attachment dated 31.1.1998 and 16.2.1998. It appears that the defendants through out were not at all willing to abide by the promises made by them to pay the decretal amount and they were creating obstructions from time to time to allow the sale of the flat. They did not submit to the Court Receiver, the original share certificates and other relevant documents pertaining to the flat put for auction. In March/April, 1998, the defendants filed a Chamber Summons No. 1441 of 1998 for raising the attachment of the properties but they did not succeed. The Court Receiver was pursuing the defendants to get the original documents of the flat and the defendants were avoiding to do so. Left with no other civil remedy, the plaintiffs filed a Contempt Petition No. 158 of 1998 against the defendants for breach of undertaking and also for committing contempt by breaking the seal fixed by the Sheriff of Mumbai on the car of the defendants. It is pertinent to note at this stage that in reply to the contempt petition, the defendant No. 3 filed an affidavit stating on oath that a sum of Rs. 4,59,97,151.85 was due and payable to the plaintiffs as per the consent decree. The Court Receiver continued to chase the defendants to get the original documents of the flat but in vain. The plaintiff once again moved this Court and my learned brother Chandrashekhara Das, J. passed an order of sale of flat after notice to the defendants in December, 1999 and the auction sale was fixed on 22nd February, 2000.

There is absolutely no dispute or doubt about the law laid down by the Supreme Court. The circumstances in which the Supreme Court has made the above observations were different than those in the present case before me. It is an admitted fact that the decree in the present case is not challenged on the ground of nullity or on the ground of lack of inherent jurisdiction. It is also not disputed that the defendants have not even whispered the so-called compulsive circumstances under which they had signed the consent terms. There is no challenge to the consent terms and the decree in terms of the consent terms. Besides, the defendants have more than once signed the consent terms and admitted the decretal amount to be paid to the plaintiffs. The first consent terms are drawn in sufficient details. There are second consent terms which were signed by the defendants in the proceedings which were taken out by them for extension of time to make payment in terms of the first consent terms. In the correspondence I saw, they had agreed to pay the amount under the decree. It was a letter written by the learned Advocate for the defendants and not by anyone else. No other circumstances or factors are put forth before me to enable me to lift the veil of the decree and to enter its back-yard. A very crucial and important fact cannot be forgotten by me that there were two consent terms admitting the liability to pay to the plaintiff. In these circumstances, it is not at all open to me sitting as an Executing Court to question the consent decree on the points raised by the learned Counsel for the applicant.

I am in respectful agreement with the said judgment of the learned Judge of the Orissa High Court. In our case, by consent the defendants had agreed to give their own flat as security in case, they fail to make payment of the decretal amount. The circumstances mentioned in the consent terms are clear enough that if the defendants fail to make payment of the decretal amount, the plaintiffs would be entitled to sell the flat under question. The flat was mentioned only as a part of the security for the suit claim and the decree did not create any right, title or Interest in favour of the plaintiff in the said flat. The right, title and interest of the defendants are not adversely affected in the consent terms and if they honour the decree, the flat would be untouched. This circumstance was not present in any of the judgments cited by the learned Counsel for the defendants. According to me, therefore, the consent decree did not require registration under Section 17 of the Registration Act. The result would have been otherwise, if in the consent decree the flat was offered to the plaintiff in lieu of the decretal amount in full and final settlement of the suit claim. In such circumstances, such a decree would surely have required registration before it could be put for execution. If the parties by consent indicate or mention some immovable properties as security for the decretal amount, such a decree, according to me, would not require registration under Section 17 of the Act.

Shri Mehta also cited a Division Bench of the Madras High Court in the case of M. Pappu Reddiar v. Amaravathi Ammal and Ors., has given broader interpretation of the words "the subject matter of the suit" in Section 17(2)(vi). The Division Bench has summarised the entire law on the point in the following two paragraphs which are reproduced hereinabove for ready reference :-

"Para 5:- Hemanthakumari Debi v. Midnapur Zamindari Co. Ltd., held that consent decrees did not require registration even if they included immovable property not the subject matter of the suit. Section 17(2)(vi) of the Indian Registration Act was, therefore, amended in 1929, so as to confine the exemption from registration to consent decrees restricted to the subject matter of the suit. After the amendment, a consent decree comprising of immovable property not the subject matter of the suit or proceeding requires registration. But the Courts below were of the view, and we think right, that in the instant case, although the properties in dispute in O. S. No. 76 of 1948, nevertheless, they should be regarded as the subject matter of that suit, inasmuch as their allotment to one or the other of the plaintiffs in the suit was inseparable from the other provisions of the compromise decree and constituted part of the consideration for the compromise. We think that this is a correct view to take. The words "the subject matter of the suit" in Section 17(2)(vi) cannot be read as subject matter of the plaint nor even as subject matter in dispute in the suit or proceeding. If the consent decree or order in the suit or proceeding covered the property, although it was not in the plaint or in dispute, such property constituting, as it does, an inseparable part of the consideration for the compromise, may well, in our view, be regarded as the subject matter of the suit. This is because the decree passed on the basis of the compromise cannot stand without that property. If by the amendment it was intended that if the property was not in the plaint schedule, the consent decree should not be exempted from registration, we are afraid the phraseology actually employed by Section 17(2)(vi) has failed to achieve the objective. We are aware that the extended scope we have given to the expression "subject matter of the suit" may narrow down the scope of the exclusion from exemption from registration under that provision. In Govindaswami Mudaliar v. Rasu Mudaliar, there was an attachment before judgment in a suit to recover money. When the relative application came up for final disposal, there was a compromise on the basis of which a decree followed. It provided for payment of the amount claimed in the suit on certain terms and the decree debt was made a charge over the properties which had been earlier attached. Venkatasubba Rao. J. held that the property was the subject matter of the proceeding within the meaning of section 17(2)(vi). We are in respectful agreement with this view of the scope of the expression "subject matter of the suit or proceeding" in that section. This view is also justified by the approach in Ramdas Sah v. Jagannath Prasad,. On that view it follows that the plaintiffs claim based on want of registration of the compromise decree, fails.