RAMAPATHI G PATHAK Vs. BRAHMADEO GURUPRASAD PATHAK

JUDGEMENT

(1.) THE original defendant has filed the present Chamber Summons for setting aside the Execution of Consent Decree dated 3-4-1999 passed by the Additional Civil Judge (SD) Bhadohi in Suit No. 60 of 1998 in respect of ? share in shop No. 7, Koteshwar Apartment, Andheri (East), Mumbai and for 1/2 possession of shop No. 7, by restoring the same to the defendant. In support of the Chamber Summons the defendant has filed his affidavit stating out the case history and the nature of dispute. The defendant has prayed for setting aside of the execution order on the ground that the Bhadohi decree was inexecutable being in contravention of the mandatory provisions of section 17 (2) (vi) of the Registration Act, 1908. I have heard both the learned Advocates for their respective parties. I have also carefully gone through the whole proceedings with the assistance of both the learned Advocates. It was submitted on behalf of the defendant that the decree was a consent decree and that the entire family property was described in the plaint. It was last submitted that the compromise decree can be registered even now under the Registration Act. Shri Pathak the learned Advocate for the original plaintiff has also submitted for dismissal of the Chamber Summons as not tenable in the execution Court which is not the Court of first instance.

(2.) IT would be relevant to first look into the suit filed by the original plaintiff before the Bhadohi Court, which was originally in Hindi and the defendant has filed an Official English translation of Hindi of the relevant part of the proceedings, to appreciate the controversy between the parties. I reproduce below the entire prayer clause of the suit:---

(3.) PURSUANT to the aforesaid decree passed by the Bhadohi Court the plaintiff filed the above Execution Application to execute the Bhadohi decree by getting it transferred to this Court for execution qua the shop situated in Bombay. The plaintiff took all the steps to execute the said decree against the defendant and executed the decree on 28-10-1999 by removing the defendant from shop premises pursuant to the decree passed by the Bhadohi Court in Suit No. 60 of 1998.