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TMI Blog1933 (4) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... ay the amount in annual instalments of ₹ 150 each spread over a number of years. It was also provided that in a default of payment of any instalment, the whole of the amount would become due and would be payable with interest at 1 percent, per mensem, and it further provided that the property specifically mentioned in the compromise would remain (makful and marhun) hypothecated and mortgaged for the amount due to the plaintiff and that the defendant shall not transfer or encumber the same property and that in case of breach of any of the conditions the plaintiff would be entitled to realise the amount by sale of the aforesaid property by execution of this decree without bringing a fresh suit. 2. The Court passed a decree in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25 of 1923 was in the nature of creating a mortgage on immovable property and not being registered was inadmissible in evidence and the Court acted without jurisdiction in so far as it created a mortgage on immovable property. It was held that all subsequent proceedings including the auction purchase by Sahu Shyam Lal were null and void. Sahu Shyam Lal has come up in appeal to this Court and challenges the finding of the Courts below. It is quite obvious that if the Court had no jurisdiction to incorporate any part of the compromise into the decree, the decree would be ultra vires and therefore void and a nullity and the auction-purchase would fall with it. On the other hand, if the Court had jurisdiction to entertain the compromise then ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance therewith so far as it relates to the suit. These words appeared, in the old Section 375, but the section proceeded to add: and such decree shall be final so far as relatas to so much of the subject-matter of the suit as is dealt with by the agreement, compromise or satisfaction. 5. It seems to us that the expression so far as it relates to the suit is somewhat wider than the expression: so far as relates to so much of the subject-matter of the suit as is dealt with by the compromise. 6. It is clearly possible to conceive of the matters which may not, strictly speaking, be the subject-matter of the suit itself as brought and yet they may relate to the suit. It therefore follows that so long as the compromise relates t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h relates to the suit. This point was emphasized by their Lordships of the Privy Council in Hemanta Kumari Debi v. Midnapur Zamindari Co. AIR 1919 PC 79. Following the observations made by their Lordships of the Privy Council on p.495, we think that a perfectly proper and effectual method of carrying out the terms of this section would be for the dceree to recite the whole of the agreement and then to conclude with an order embodying those matters which relate to the suit, or it could introduce the agreement in a schedule to the decree, but in either although the operative part of the decree would be properly confined to the actual subject-matter of the then existing litigation the decree taken whole would include the agreement. 8. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt had jurisdiction to award to the plaintiff a larger amount than, was claimed if the amount is decreed on a compromise between the parties. In a later case in Raghubans Mani Singh v. Mahabir Singh (1905) 28 All 78, there was an observation at pp. 80-81 which was in the nature of an obiter dictum that the decree of a Court will be enforcible as a decree only so far as it relates to the subject-matter of the suit. The learned judge was not called upon to decide whether if the Court wrongly decided that a certain agreement related to the suit and passed a decree on it, the decree would be a nullity and would not be binding on the parties to it. The view winch has prevailed in Madras and also in Oudh seems to be to the effect that even though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compromise it was not necessary be incorporate the whole of the compromise into the operative portion of the decree. No doubt the lower Court intended to incorporate the whole of the compromise into the operative part of the decree as was actually done when the decree was prepared. We might also add that even if our view had been different, we would not have readily accepted the contention that the direction that the money decree to be paid in instalments should be realized in case of default by sale of the property specified in the execution department would necessarily be a provision which would amount to an agreement not relating to the suit. We accordingly allow the appeal and setting aside the decree of the Court below dismiss the sui ..... X X X X Extracts X X X X X X X X Extracts X X X X
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