IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 27TH MARCH 2008 / 7TH CHAITHRA 1930 WP(C).No. 32291 of 2006(T) -------------------------------------- OS.1534/2000 OF MUNSIFF COURT, ERNAKULAM ............................................. PETITIONERS: -------------------- 1. SHAREEFA, W/O. LATE K.I. KOCHUNNI, RESIDING AT V/411, KOLLAMPARAMBIL, THRIKKAKARA PANCHAYAT, UNICHIRA, NEAR THYKKAVU, BHARATHMATHA COLLEGE P.O., ERNAKULAM DISTRICT. 2. NAZER, S/O. LATE K.I. KOCHUNNI, RESIDING AT V/411, KOLLAMPARAMBIL, THRIKKAKARA PANCHAYAT, UNICHIRA, NEAR THYKKAVU, BHARATHAMATHA COLLEGE P.O., ERNAKULAM DISTRICT. 3. SUHARA KAREEM, D/O.LATE K.I. KOCHUNNI, RESIDING AT V/411, KOLLAMPARAMBIL, THRIKKAKARA PANCHAYATH, UNICHIRA, NEAR THYKKAVU, BHARATHMATHA COLLEGE P.O., ERNAKULAM DISTRICT. 4. JAMEELA MOHAMMEDALI, D/O. LATE K.I. KOCHUNNI, RESIDING AT V/411, KOLLAMPARAMBIL, THRIKKAKARA PANCHAYATH, UNICHIRA, NEAR THYKKAVU, BHARATHMATHA COLLEGE P.O., ERNAKULAM DISTRICT. 5. NAZEEMA BASHEERALI, S/O. LATE K.I.KOCHUNNI, RESIDING AT V/411, KOLLAMPARAMBIL, THRIKKAKARA PANCHAYATH, UNICHIRA, NEAR THYKKAVU, BHARATHMATHA COLLEGE P.O., ERNAKULAM DISTRICT. BY ADV. SRI.TOM K.THOMAS WP(C) NO: 32291/2006 T RESPONDENTS: ----------------------- 1. MOHAMMEDALI, S/O. LATE K.I. HASSAN, ILLICKAL, KAVUNGAPADATH HOUSE, PATHADIPPALAM, CHANGAMPUZHA NAGAR P.O., EDAPPALLY, KOCHI-31. 2. K.H. ABDUL KAREEM, S/O.LATE K.I. HASSAN, ILLICKAL, KAVUNGAPADATH HOUSE, PATHADIPPALAM, CHANGAMPUZHA NAGAR P.O., EDAPPALLY, KOCHI-31. *3. K.H. ABDUL MAJEED, S/O. LATE HASSAN, ILLICKAL, KAVUNGAPADATH HOUSE, PATHADIPPALAM, CHANGAMPUZHA NAGAR P.O., EDAPPALLY, KOCHI- 31. 4. K.H. ABDUL SALAM, S/O. LATE K.I. HASSAN, ILLICKAL, KAVUNGAPADATH HOUSE, PATHADIPPALAM, CHANGAMPUZHA NAGAR P.O., EDAPPALLY, KOCHI- 31. *5. ASIA BEEVI (LAILA), D/O. LATE K.I. HASSAN, KAMALAYATH MADHOM, PUNNOPPETTY, ALUVA-5, ERNAKULAM DIST. * (R5 IS DELETED AS PER ORDER DATED 12/03/2007 IN IA NO. 1640/2007 IN WPC NO. 32291/2006) 6. SOUDHA HAMEED, D/O. LATE K.I. HASSAN, CHENNAPPATTHY, NAZEEM MANZIL, KUTHIKKATTUKARA, ALUVA-5, ERNAKULAM DIST. R1-R6 BY ADV. SRI.GEORGE KARITHANAM VARGHESE SRI.V.J.JOHN SRI.JOSE KURIAKOSE (VILANGATTIL) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/03/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO: 32291/2006 T APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE DECREE IN OS NO. 1534/00 DT. 28/10/03 OF THE IST ADDL. MUNSIFF, ERNAKULAM. EXT.P2. COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS IN IA NO. 10268/2005 BEFORE THE MUNSIFF'S COURT, ERNAKULAM. EXT.P3. COPY OF THE OBJECTION FILED BY THE RESPONDENTS/DEFENDANTS TO IA NO. 10268/2005 DT. 13/1/2006. EXT.P4. COPY OF THE ORDER DT. 17/1/2006 IN IA NO. 10268/2005 IN OS NO. 1534/00 BY THE MUNSIFF COURT, ERNAKULAM. EXT.P5. COPY OF THE REVIEW PETITION FILED BY THE PETITIONERS DT. 28/2/2006 BEFORE THE MUNSIFF'S COURT, ERNAKULAM. EXT.P6. COPY OF THE OBJECTION FILED BY THE RESPONDENTS IN EXHIBIT P5 REVIEW PETITION. EXT.P7. COPY OF THE ORDER DT. 28/3/2006 IN IA NO. 2215/2006 BY THE FIRST ADDL. MUNSIFF'S COURT. RESPONDENT'S EXHIBITS NIL. True copy tga M.N.KRISHNAN, J ===================== W.P.(C) No.32291 OF 2006 ===================== Dated this the 28th day of March 2008 JUDGMENT This writ petition is preferred against the order of the I Addl. Munsiff's Court, Ernakulam in I.A.No.2215 of 2006 in O.S.No.1534 of 2000. The said application was filed to review the order passed under Ext.P4. The brief facts are: The suit has been compromised between the parties and the right over the properties had been mentioned in the compromise and to that effect, declaration is effected. Now the petitioners wanted that as per the mandate of Section 89(5) of the Registration Act, the civil court is bound to send a copy of the order to the Registrar's office and a request is made on that behalf. But, it appears in the prayer portion also the purpose of registration was incorporated. Now whether it requires registration or not is covered by Section 17(2)(vi) of the Registration Act. Section 17(2)(vi) reads thus: “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”. WP(C)32291/2006 -:2:- Or, in other words, if a compromise is entered into with respect to the properties which is not the subject matter of the suit then the rule mandates that it has to be registered otherwise it is not necessary. Section 23 of the said Act says that when a document is executed that document has to be presented before the proper officer for registration within 4 months from the date of its execution. As far as this case is concerned, the property that has been compromised between the parties is only the subject matter of the suit and therefore a registration is not necessary as contemplated under Section 17(2)(vi) of the Registration Act. 2. Learned counsel for the respondents in this case would contend that there are stipulations in the compromise decree which has to be complied with and that has not been complied with and therefore the decree has not become operative and so the question of sending it to the Sub Registrar's office does not arise. When the parties compromise the matter and the decree is passed on the basis of the compromise that compromise also become part and parcel of the decree and the invalidity otherwise of that compromise can be challenged only by way of litigations know to law. One cannot argue for the position that after a compromise decree is passed, it has no validity for the reason that the terms of compromise have not been complied with. There is no clause which makes the compromise ineffective. WP(C)32291/2006 -:3:- What is provided in the clause is in case the properties are to be proceeded against on account of the default within 19 months by the bank, then the party who is responsible for the same has to pay damages or otherwise it is only an enabling provision whereby the party is given a right to proceed with the other properties for the damages sustained. So, I cannot accept the contention of the learned counsel for the respondents and that it need not be sent to the Registrar's office under Section 89(5) of the said Act. Therefore, I hold that the properties covered by the compromise is exempted from registration in view of the provisions under Section 17(2)of the Registration Act and as Section 89(5) mandates the court to send a copy of the compromise decree to the Registrar's office it is incumbent upon the court to send an authorized copy to the Sub Registrar for the purpose of compliance of the statutory requirements under Section 89(5). Therefore the writ petition is allowed. I make it clear that I have not stated anything with respect to the validity or invalidity of the compromise in this case. The court below shall send a copy of the compromise decree to the Sub Registrar's office under Section 89(5) of the Registration Act within one month. M.N.KRISHNAN, JUDGE Cdp/- WP(C)32291/2006 -:4:-