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2014 DIGILAW 827 (CAL)

Rita Chakraborty v. Kalidas Bhattacharjee

2014-08-29

SUBRATA TALUKDAR

body2014
JUDGMENT SUBRATA TALUKDAR, J. In this application under Article 227 of the Constitution of India challenge is thrown by the petitioner/decree holder/plaintiff to the judgment and order dated 3rd September, 2013 in Title Execution Case No. 5 of 2012 passed by the Learned 4th Civil Court (Junior Division) at Alipore. The short facts of the case are as follows:- (a) That the petitioner as plaintiff filed a suit for declaration and injunction praying, inter alia, for a declaration that she is a tenant in respect of the suit premises and cannot be evicted without due process of law. (b) The said suit being Title Suit no. 2612 of 2009 culminated into a Compromise Decree between the parties. The parties also entered into Terms of Agreement which were made part of the Decree. (c) Order no.9 dated 1st June, 2010 decreeing the suit on Compromise between the parties under Order 23 Rule 3 of the Code of Civil Procedure (for short CPC) reads, inter alia, as follows:- "It is ordered that the suit be decreed in terms of the petition of compromise in so far as they relate to the subject matter of the suit. The petition of compromise and the agreement in between the parties be made part of the decree. Parties to bear their own costs." (d) The joint petition of compromise filed by the parties under Order 23 Rule 3 CPC at paragraph 6 thereof reads, inter alia, as follows:- "That the instrument for agreement, prepared by the parties unanimously containing essential and unavoidable terms and conditions for all the parties of the suit, has been filed hereto should be part and parcel of the compromise decree for proper adjudication of the matter and to avoid all complications and disputes in future between the parties and/or their heirs, successors etc." (e) Paragraph 7 of the said Compromise petition reads as follows:- "That in pursuance with the petition for compromise and in compliance with the terms and conditions incorporated in the said Agreement the parties herein put their respective hands for implementation of the amicable settlement for development of the entire property including the suit property." (f) At paragraphs 8 and 9 of the said Compromise petition the following is pleaded:- "8. That under such change circumstances it would be meaningless to proceed with the said suit for declaration and permanent injunction unnecessarily at the cost of wasting of the Learned Court's valuable time. 9. That the parties hereby undertake with averment that they would pay necessary Court fee abiding by the behest of the Ld. Court. In the above facts and circumstances, it is therefore prayed that Your Honour would graciously be pleased to pass compromise decree making the petition, Instrument of Agreement as part and parcel of the compromise decree for legalization of the amicable settlement for development of the suit property." (g) The Instrument of Agreement dated 14th May, 2010 signed by all the parties namely, the petitioner/plaintiff, the opposite parties 1 to 6 owners of the suit property and opposite party nos. 7 and 8 the developers of the suit property reads, inter alia, as follows:- "The owners hereby admit and acknowledge the Second Part herein as a bonafide monthly tenant under them in respect of a portion of premises no. 57A, Nepal Bhattacharya First Lane (within P.S. - Kalighat), Kolkata - 700026 consisting of three rooms, one kitchen, one open verandah, one bath-cum-privy etc. at a monthly rental of Rs. 80 (Rupees eighty only) payable according to English calendar month and the owners are acknowledging the said monthly rent from the Second Part herein. And whereas the owners (Parties of the First Part) entered into an agreement for development of the premises no. 57A, Nepal Bhattacharya First Lane (within P.S. - Kalighat), Kolkata - 700026 with the Third part (the Developers) herein on 29th December, 2008 on the terms and conditions recorded therein. And whereas the owners (Parties of the First Part) entered into an agreement for development of the premises no. 57A, Nepal Bhattacharya First Lane (within P.S. - Kalighat), Kolkata - 700026 with the Third part (the Developers) herein on 29th December, 2008 on the terms and conditions recorded therein. (h) The said Instrument of Agreement, inter alia, also contains the following clauses:- "And whereas, the parties of the First Part/Owners and Third Part/Developer/Promoter approached to the Second Part herein to negotiate with them for development of the said premises with specific undertaking to rehabilitate to her in appropriate manner and an Agreement was executed by the Developer in One Part and Tenant in Other Part and Tenant in Other Part on 6th June 2008 for demolishing the existing Shiva Temple situated in and around the said premises, being premises No. 57A, Nepal Bhattacherjee 1st Lane, within Police Station, Kalighat, Kolkata - 700026 which is contiguous to the portion of tenanted portion of the Second Part and the Second Part received a sum of Rs. 45,000/-(Rupees Forty jive thousand) only from the Developer/Promoter herein as Security Deposit. And whereas, the said Owners and Developers have agreed to demolish the existing old dilapidated structures standing therein at 57A, Nepal Bhattacharjee 1st Lane, within Police Station - Kalighat, Kolkata - 700026 after obtaining sanctioned building plan and to construct a multi storeyed building on the said plot of land in accordance with sanctioned building plan duly approved by The Kolkata Municipal Corporation and it is absolutely necessary that the Tenant should vacate the said tenanted portion after duly approved the sanctioned Building plan to facilitate demolition of the existing structures and to construct of the said multi storeyed building- And whereas, the Tenant has agreed to vacate the said tenanted portion after obtaining sanctioned building plan on the clear and specific assurances and undertaking of the Owners and Developer herein that the Tenant would be given a permanent accommodation in the form of self-contained flat measuring about 800 sq. ft. (more or less) covered area, i.e. built up area more or less at first floor (northern side) at premises no. 57A, Nepal Bhattacharjee 1st Lane, within Police Station, Kalighat, Kolkata - 700026 in the new Building complex after redevelopment of the said premises purely on ownership basis without any consideration money, i.e. free of costs as per specification written herein-below. (more or less) covered area, i.e. built up area more or less at first floor (northern side) at premises no. 57A, Nepal Bhattacharjee 1st Lane, within Police Station, Kalighat, Kolkata - 700026 in the new Building complex after redevelopment of the said premises purely on ownership basis without any consideration money, i.e. free of costs as per specification written herein-below. And whereas, before demolishing the existing old structures in the said tenanted portion, the Developer/Promoters shall, at their own costs and expenses, arrange alternative accommodation of the Tenant/Second Part to be used as temporary alternative residential accommodation at the rate of Rs. 4,000/- (Rupees four thousand) only per month and the Developer/Third part till completion of the said multi storeyed building completed in all aspects and possession thereof have been delivered to the Tenant in a habitable and useable condition and the Tenant shall have no liabilities in this context and the entire alternative costs are to be paid by the Developer at the time of these presents which is specifically mentioned and described in the Memo of Consideration written hereunder." (i) The said Instrument of Agreement further provides as follows:- "4. The Owners and the Developers hereby jointly assure and undertake to hand over the exclusive possession of one (one) self-contained flat measuring about 800 Sq. ft. covered area i.e. built up area more or less at first floor (Northern side) of the proposed newly constructed multi storeyed building within 18 (eighteen) months from the date of the execution of these presents without any costs. 5. The Owners and the Developers jointly undertake to hand over the said self-contained flat at first floor (northern side) measuring about 800 Sq. ft. covered area, i.e. built up area more or less with all fittings and fittings including impartible and undivided proportionate share in all common parts or portions in the said proposed multi storeyed building and the land underneath and appertaining into the said premises no. 57A, Nepal Bhattacharjee 1st Lane, within Police Station - Kalighat, Kolkata - 700026 to the Tenant with proper possession letter and thereafter, the Developers and the Owners shall have the liberty to handover possession to the other flats/units/apartments to other intending purchasers. The Tenant shall have the right and authority to enforce this Agreement under the law through competent Court having territorial jurisdiction (emphasis supplied). The Tenant shall have the right and authority to enforce this Agreement under the law through competent Court having territorial jurisdiction (emphasis supplied). The Owners and the Developers jointly further undertake to execute and register the proper Deed of Conveyance relating to absolute sale of the said flat to the Tenant without any consideration money simultaneously at the time of execution and registration of Deeds of Conveyance relating to the sale of other flats/units/apartments to other intending purchaser and/or purchasers. The cost and expense for registration of the said flat shall be borne by the Tenant/Second/party herein and the Developer shall no way be liable for the said costs and expenses for registration. 6. The Owners and Developers hereby jointly undertake and agreed that one room, one bathroom, within tin shed (back side) of the building will be in possession under the Tenant as symbolic possession and that portion should not be demolished in any manner whatsoever till handed over possession of the said flat and also electric meter in the name of A.K. Chakraborty should not be disconnected, if, permitted by the C.E.S.C. 9. That, each term of this Agreement is the consideration for the other and failure to comply with the terms and conditions of this Agreement or any of it by either of the parties shall be a cause of action for the other parties to file a suit for enforcement of this Agreement and all the costs and damages for the same shall be borne." (Emphasis supplied) Upon signing of the above noted presents the petitioner alleges that the opposite parties being respectively, the owners and the developers of the suit premises, acted in breach of the reciprocal obligations agreed between the parties. The petitioner therefore was compelled to file an execution proceedings being Title Execution Case no. 5 of 2012 before the Learned Trial Court praying for execution of the Compromise Decree. Alongwith the Execution Application the petitioner also filed an application for temporary injunction which was refused by the Learned Trial Court. Being aggrieved by the order of refusal of ad-interim injunction the petitioner preferred Misc. Appeal no. 286 of 2012 before the Learned District Court, Alipore. The said Misc. Appeal being no. Alongwith the Execution Application the petitioner also filed an application for temporary injunction which was refused by the Learned Trial Court. Being aggrieved by the order of refusal of ad-interim injunction the petitioner preferred Misc. Appeal no. 286 of 2012 before the Learned District Court, Alipore. The said Misc. Appeal being no. 286 of 2012 being dismissed on contest, the petitioner challenged the same before this Hon'ble Court in an application filed under Article 227 of the Constitution of India being C.O. 3748 of 2012. C.O. 3748 of 2012 was disposed of by an Hon'ble Single Bench of this Court by order dated 4th of March, 2013. The operative portion of the order reads as follows:- "Since the opposite party nos. 7 and 8 have suggested that the substance of the order dated October 18, 2012 passed at the ad interim stage of the present proceedings may be continued till the decree-holder's injunction application is decided by the executing court, this matter may be disposed of on such basis. The petitioner herein has also agreed to the suggestion. There will be an order of injunction restraining the opposite party nos. 7 and 8, whether by themselves or by their servants or agents or assigns or otherwise howsoever, from dealing with or disposing of or alienating or encumbering or parting with possession of the flat measuring 800 sq. ft. on the first floor (northern side) of premises No. 57A, Nepal Bhattacharjee 1st Lane, Kolkata - 700 026 or any part thereof in any manner whatsoever. Such injunction will continue till the disposal of the decree-holder's injunction application in the executing court. The executing court will, however, be free to decide on the matter before it uninfluenced by this order and the undertaking given by the opposite party nos. 7 and 8 herein. It will also be open to both the decree-holder and the opposite party nos. 7 and 8 to urge whatever ground that may be available to them. At the joint request of the petitioner and the opposite party nos. 7 and 8 herein. It will also be open to both the decree-holder and the opposite party nos. 7 and 8 to urge whatever ground that may be available to them. At the joint request of the petitioner and the opposite party nos. 7 and 8, the executing court is requested to dispose of the relevant application taken out by the decree-holder as expeditiously as the business of that court would permit and preferably, within three months from the date of communication of this order." The petitioner has further alleged that the opposite parties filed an application before the Learned Executing Court under Section 151 CPC praying, inter alia for dismissal of the execution proceedings being Title Execution case no. 5 of 2012. The petitioner filed her affidavit-in-opposition to the said application. By the order impugned the Learned Executing Court was pleased to allow the application of the opposite parties filed under Section 151. As a result the execution proceedings instituted by the petitioner was set aside. Being aggrieved by the said order dated 3rd September, 2013 quashing the execution proceedings, the petitioner has impugned the same in the present C.O. 3415 of 2013. By the order impugned dated 3rd September, 2013 the Learned Executing Court was pleased to, inter alia order as follows:- "Hence, the application under Section 157 of the Code of Civil Procedure filed by the J. Dr. No. 1 to 6 is hereby considered and allowed on contest and accordingly the instant execution case is dismissed as being not maintainable." Sri Malay Kumar Bose, Learned Senior Counsel, with Sri Kaustav Chandra Das, Learned Counsel appearing for the petitioner has argued as follows:- (i) That admittedly all the parties entered into a tripartite agreement and jointly filed a Compromise petition before the Learned Trial Court. While recognising the Compromise the Learned Trial Court has carefully held as follows:- "It is ordered that the suit be decreed in terms of the petition of compromise in so far as they relate to the subject matter of the suit. The petition of compromise and the agreement in between the parties be made part of the decree." (ii) Sri Bose therefore points out that it is imperative in the decree that both the Instrument of Agreement and the Compromise petition should be read conjointly. The petition of compromise and the agreement in between the parties be made part of the decree." (ii) Sri Bose therefore points out that it is imperative in the decree that both the Instrument of Agreement and the Compromise petition should be read conjointly. From such conjoint reading it would be evident that by the transaction agreed upon between the parties no interest in the non-suit property was created in favour of the petitioner-decree holder in the present. On the contrary, the said Compromise Decree provided for doing of certain acts by the parties in future for creating a future interest in future in the non-suit property in favour of the decree holder. In this connection Sri Bose relies upon an Hon'ble Single Bench decision of this Court in C.O. 668 of 2010. (iii) It is also argued on behalf of the petitioner that the Learned Trial Court was pleased to declare that the terms of the Compromise are legal and valid. Sri Bose emphasizes that in the Compromise Decree it is implicit that the Instrument of Agreement with all its terms which are stated to be individually the consideration for each other and failure of any of the parties to comply with any of the terms and conditions of the agreement shall be a cause-of-action for the other party to file a suit for enforcement of the Agreement. Sri Bose also asserts that it is implicit in both the Agreement and the Compromise based on the Agreement that there is no scope to defraud the government of its revenues arising out of the transaction agreed by the parties. He submits that there are specific averments in the Agreement that after possession is handed over to the petitioner she remains duty bound and obliged to have the Deed of Conveyance executed after paying the requisite stamp fees and other charges. In support of such contention Sri Bose relies upon a judgment of the Hon'ble Apex Court in the matter of Suraj Lamp and Industries Private Limited vs. State of Haryana and Another, 2012 (1) SCC 656 . The said decision is an authority on the point that the transfer of immovable property cannot be done through Agreement of sale but only through conveyance. The said decision is an authority on the point that the transfer of immovable property cannot be done through Agreement of sale but only through conveyance. Therefore, as soon as the present petitioner is put in possession of the suit property, she remains duty bound to execute the conveyance upon payment of requisite stamp duty and registration charges. It is axiomatic that on failure of the petitioner to execute the conveyance, no right, title or interest in the suit property will pass to her. (iv) Sri Bose further submits that the Executing Court is precluded from going behind the decree simply on the ground that such decree which, in essence seeks to pass title to the property, has not been registered. According to Sri Bose, the decree recognizes in presenti the claim of the petitioner to the suit property and it is not the contention of any of the parties that the Instrument of Agreement and the terms of Compromise are either illegal or invalid. In this connection Sri Bose relies upon a judgment of the Madhya Pradesh High Court. (v) It is further argued on behalf of the petitioner that the Instrument of Agreement and the Compromise Decree unequivocally refer to the subject matter of the suit. It is also unequivocally made clear in the Instrument of Agreement that in the event any of the parties fail to carry out any term of the Agreement which, would also imply failure to carry out the other terms of the Agreement, the aggrieved party will be at liberty to institute a legal action for enforcement of the agreement. The Compromise Decree is therefore legally enforceable and the mere absence of registration shall not vitiate the execution proceedings. In this connection Sri Bose relies upon a judgment of the Hon'ble Supreme Court reported in 2006 (10) SCC 788 . Placing strong reliance on the judgment of the Hon'ble Apex Court reported in the matter of Salkia Businessmen's Association & Others vs. Howrah Municipal Corporation & Others, AIR 2001 SC 2790 . Sri Bose argues that an order of Compromise recognized by the Court is strictly enforceable. To argue that in the absence of registration the Compromise Decree of a competent Court is rendered ineffectual is an argument in denial of the recognized due legal process. Sri Bose argues that an order of Compromise recognized by the Court is strictly enforceable. To argue that in the absence of registration the Compromise Decree of a competent Court is rendered ineffectual is an argument in denial of the recognized due legal process. Sri Bose therefore prays for setting aside the order impugned dated 3rd September, 2013 by pointing out that the Learned Trial Court erred in holding that the Agreement and Compromise between the parties merely contained a promise and such promise is not executable. The Learned Trial Court erred in holding that in the absence of title created in favour of the petitioner in the subject matter of the property, no cause-of-action accrued in favour of execution of the decree. Per contra Sri Shyama Prasanna Roychowdhury, Learned Senior Counsel appearing for the OPs 1 to 6 (Owners) has argued as follows:- (A) It is a fundamental legal postulate that the Compromise Decree having not been registered as per the provisions of Section 17 of the Registration Act, such decree is incapable of execution. According to Sri Roychowdhury, by virtue of the said Compromise decree a new right was created in favour of the petitioner in respect of the property which was not the subject matter of the suit. Such new right requires compulsory registration under Section 17 of the Registration Act, 1908 and in the absence of such registration the decree is not enforceable. (B) Clauses 4 and 5 of the Instrument of Agreement dated 14th May, 2010 contemplates creation of new rights in respect of a new building over the suit property. Such new building was not initially part of the suit property and was subsequently incorporated in the Compromise Agreement. Section 17(1)(b) of the Registration Act provides for compulsory registration of immovable properties in respect of which either in the present or in the future any right, title and interest passes above the value of Rs. 100 provided such right, title and interest in such immovable properties is acquired through non-testamentary instruments. Section 17(2)(vi) of the Registration Act provides that Section 17(1)(b) (supra) is not applicable to any decree or order of a Court except a decree or order expressed to be made on a Compromise in respect of immovable property other than that which is the subject matter of the suit. Section 17(2)(vi) of the Registration Act provides that Section 17(1)(b) (supra) is not applicable to any decree or order of a Court except a decree or order expressed to be made on a Compromise in respect of immovable property other than that which is the subject matter of the suit. Sri Roychowdhury relies upon the following decisions in support of his above noted argument. Bhoop Singh vs. Ram Singh Major, AIR 1996 SC 196 . K. Raghunandan vs. Ali Hussain Sabir, AIR 2008 SC 2337 . Relying on the above decisions Sri Roychowdhury further argues that the Hon'ble Apex Court has clearly held that a Compromise Decree is compulsorily registrable if the same creates new rights in immovable property of the value of Rs. 100 or upwards. It was also held that if the property dealt with by the decree is not the subject matter of the suit, the Registration Act shall not operate. Sri Roychowdhury submits that in the present case the subject matter of the suit is not the subject matter of the Compromise Agreement. The Compromise Agreement creates present rights and is not identical to the subject matter in the suit. Hence, in the absence of registration which is compulsory the Agreement is not enforceable. (C) Elaborating on the above argument Sri Roychowdhury points out that although Clause 9 of the Instrument of Agreement dated 14th May, 2010, inter alia, provides that failure to comply with the terms of the Agreement by any of the parties shall give the aggrieved party a right to enforcement of the Agreement, at the same time Clause 5 of the said Instrument of Agreement provides that the Second Party (Tenant) shall have the right and authority to enforce the Agreement under the law through a competent Court having territorial jurisdiction. A joint reading of both Clauses 9 and 5 (supra) makes it clear that the Executing Case filed by the petitioner is not maintainable and the only remedy is to file a suit for breach of any of the conditions of the Agreement. Sri Roychowdhury therefore distinguishes the decision relied upon by Sri Bose as. He submits that since the said decision does not take into consideration the ratio declared by the Hon'ble Apex Court in Bhoop Singh's case (supra), the same is per incuriam. Sri Roychowdhury therefore distinguishes the decision relied upon by Sri Bose as. He submits that since the said decision does not take into consideration the ratio declared by the Hon'ble Apex Court in Bhoop Singh's case (supra), the same is per incuriam. Sri Sabyasachi Bhattacharya, Learned Senior Counsel appearing on behalf of the OPs 7 and 8/the Developers has adopted the argument made by Sri Roychowdhury appearing on behalf of the OPs 1 to 6 (Owners). He submits that following the line of argument presented before this Court by Sri Roychowdhury the petitioner only has the right to apply before a competent Court of territorial jurisdiction in the nature of a suit for enforcement of Agreement. He adds that the Compromise Decree being not registered, the same is not enforceable. Heard the parties. Considered the materials on record. The short point that arises for the consideration of this Court is whether the Compromise Decree arising out of the Terms of the Agreement between the parties (supra) recognizes the pre-existing right of the petitioner/plaintiff/decree holder in the suit property or confers a new right in the suit property. In this connection the judgment of the Hon'ble Apex Court in Bhoop Singh's case (supra) may be usefully reproduced:- "16. We have to view the reach of Clause (vi), which is an exception to sub-section (1), bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a Court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in presenti in immovable property of value of Rs. 100/- or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order. 17. It would, therefore, be the duty of Court to examine in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the Court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in presenti in immovable property of the value of Rs. 100/- or upwards in favour of other party for the first time, either by compromise or pretended consent. 100/- or upwards in favour of other party for the first time, either by compromise or pretended consent. If latter be the position, the document is compulsorily registrable. 18. The legal position qua Clause (vi) of Section 17(2) can, on the basis of the aforesaid discussion, be summarised as below:- (1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration. (2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value or Rs. 100/- upwards in favour of any party to the suit, the decree or order would require registration. (3) If the decree were not to attract any of the Clauses of sub-section (1) of Section 17, as was the position in the aforesaid Privy Council and this Court's cases, it is apparent that the decree would not require registration. (4) If the decree were not to embody the terms of compromise, as was the position in Lahore case, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of compromise in question. (5) If the property dealt with by the decree be not the subject matter of the suit or proceeding, Clause (vi) of sub-section (2) would not operate, because of the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated." In the case of Som Dev's case (supra) the Hon'ble Apex Court was pleased to hold as follows:- "Almost the whole of the argument on behalf of the appellants here, is based on the ratio of the decision of this Court in Bhoop Singh (supra). It was held in that case that exception under clause (vi) of Section 17(2) of the Act is meant to cover that decree or order of a Court including the decree or order expressed to be made on a compromise which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value of Rs. 100/- or upwards. 100/- or upwards. Any other view would find the mischief of avoidance of registration which requires payment of stamp duty embedded in the decree or order. It would, therefore, be the duty of the Court to examine in each case whether the parties had pre-existing right to the immovable property or whether under the order or decree of the Court one party having right, title or interest therein agreed or suffered to extinguish the same and created a right in praesenti in immovable property of the value of Rs. 100/- or upwards in favour of the other party for the first time either by compromise or pretended consent. If latter be the position, the document is compulsorily registrable. Their Lordships referred to the decisions of this Court in regard to the family arrangements and whether such family arrangements require to be compulsorily registered and also the decision relating to an award. With respect, we may point out that an award does not come within the exception contained in clause (vi) of Section 17(2) of the Registration act and the exception therein is confined to decrees or orders of a Court. Understood in the context of the decision in Hemanta Kumari Debi (supra) and the subsequent amendment brought about in the provision, the position that emerges is that a decree or order of a court is exempted from registration even if clauses (b) and (c) of Section 17(1) of the Registration Act are attempted, and even a compromise decree comes under the exception, unless, of course, it takes in any immovable property that is not the subject matter of the suit. 12. We shall now examine the decision in Bhoop Singh (supra). What was involved therein was a decree based on admission. It is to be noted that in that case it was a decree that created the right. 12. We shall now examine the decision in Bhoop Singh (supra). What was involved therein was a decree based on admission. It is to be noted that in that case it was a decree that created the right. The decree that is quoted in paragraph 2 of that judgment was to the effect: "It is ordered that a declaratory decree in respect of the property in suit fully detailed in the heading of the plaint to the effect that the plaintiff will be the owner in possession from today in lieu of the defendant after his death and the plaintiff deserves his name to be incorporated as such in the revenue papers, is granted in favour of the plaintiff against the defendant." Therefore, it was a case of the right being created by the decree for the first time unlike in the present case. In paragraph 13 of that Judgment it is stated that the Court must enquire whether a document has recorded unqualified and unconditional words of present demise of right, title or interest in the property and if the document extinguishes that right of one and seeks to confer it on the other, it requires registration. But with respect, it must be pointed out that a decree or order of a Court does not require registration if it is based on a compromise on the ground that clauses (b) and (c) of Section 17 of the Registration Act are attracted. Even a decree on a compromise does not require registration if it does not take in property that is not the subject matter of the suit. A decree or order of a Court is normally binding on those who are parties to it unless it is shown by resort to Section 44 of the Evidence Act that the same is one without jurisdiction or is vitiated by fraud or collusion or that it is avoidable on any ground known to law. But otherwise that decree is operative and going by the plain language of Section 17 of the Registration Act, particularly, in the context of sub-clause (vi) of sub-section (2) in the background of the legislative history, it cannot be said that a decree based on admission requires registration. But otherwise that decree is operative and going by the plain language of Section 17 of the Registration Act, particularly, in the context of sub-clause (vi) of sub-section (2) in the background of the legislative history, it cannot be said that a decree based on admission requires registration. On the facts of that case, it is seen that their Lordships proceeded on the basis that it was the decree on admission that created the title for the first time. It is obvious that it was treated as a case coming under Section 17(1)(a) of the Act, though the scope of Section 17(2)(vi) of the Act was discussed in detail. But on the facts of this case, as we have indicated and as found by the courts, it is not a case of a decree creating for the first time a right, title or interest in the present plaintiff and his brother. The present is a case where they were putting forward in the suit a right based on an earlier transaction of relinquishment or family arrangement by which they had acquired interest in the property scheduled to that plaint. Clearly, Section 17(1)(a) is not attracted. It is interesting to note that their Lordships who rendered the judgment in Bhoop Singh themselves distinguished the decision therein in S. Noordeen vs. V.S. Thiru Venkita Reddiar and Others, (1996) 2 SCR 261, on the basis that in the case of Bhoop Singh there was no pre-existing right to the properties between the parties, but a right was sought to be created for the first time under the compromise. Their Lordships proceeded to hold that in a case where the plaintiff had obtained an attachment before judgment on certain properties, the said properties would become subject matter of the suit and a compromise decree relating to those properties came within the exception in Section 17(2)(vi) of the Act and such a compromise decree did not require registration. Merely because the defendant in that suit in the written statement admitted the arrangement pleaded by the plaintiff it could not be held that by that pleading a right was being created in the plaintiffs and a decree based on such an admission in pleading would require registration. We are satisfied that the decision in Bhoop Singh (supra) is clearly distinguishable on facts. 14. We are satisfied that the decision in Bhoop Singh (supra) is clearly distinguishable on facts. 14. Learned counsel for the plaintiff-contesting respondent raised a contention that the ratio of the decision in Bhoop Singh (supra) requires reconsideration since the said decision has not properly understood the scope of clause (vi) of Section 17(2) of the Registration Act. For the purposes of this case we do not think it is necessary to examine this argument. We are satisfied that the said decision is distinguishable." Another judgment in the matter of K. Raghunandan & Others vs. Ali Hussain Sabir & Others, AIR Supreme Court 2337, the Hon'ble Apex Court was pleased to observe at paragraphs 17, 18, 19, 21 & 23 as follows:- "17. Sub-section (2) of Section 17 of the Act, however, carves out an exception there from stating that nothing in clauses (b) and (c) of sub-section (1) of Section 17 would inter alia apply to any decree or order of a Court except a decree or order expressed to be made on a compromise and compromising immovable property other than that which is the subject matter of the suit or proceeding. Even if the passage was not the subject matter of the suit, indisputably, in terms of the Code of Civil Procedure Amendment Act, 1976, a compromise decree was permissible. 18. A plain reading of the said provision clearly shows that a property which is not the subject matter of the suit or a proceeding would come within the purview of exception contained in clause (vi) of sub-section (2) of Section 17 of the Act. If a compromise is entered into in respect of an immovable property, comprising other than that which was the subject matter of the suit or the proceeding, the same would require registration. The said provision was inserted by Act 21 of 1929. 19. The Code of Civil Procedure Amendment Act, 1976 does not and cannot override the provisions of the Act. The purported passage being not the subject matter of the suit, if sought to be transferred by the defendants-respondents in favour of the plaintiffs- appellants or if by reason thereof they have relinquished their own rights and recognized the rights of the plaintiffs appellants, registration thereof was imperative. The First Appellate Court held so. The High Court also accepted the said findings. 21. The First Appellate Court held so. The High Court also accepted the said findings. 21. Appellants have given up their claim of 150 yards of land which was to be on the rear side of the property and in lieu thereof the passage was exclusively given to the plaintiffs- appellants. Thus, the appellants have rested its case on the basis of an exchange of land between the plaintiffs and defendants. The High Court opined that as by reason thereof an inference can be drawn that the defendants who had been in possession of the passage had given up their rights in lieu of 150 yards of land, the same would constitute a transfer of property and, thus, necessitated registration. It was in the aforementioned situation the High Court relied upon the decision of this Court in Bhoop Singh. 22. Bhoop Singh (supra), inter alia, lays down:- "(1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration. In a converse situation, it would not require registration. (2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs. 100 or upwards in favour of any party to the suit the decree or order would require registration." 23. Thus, indisputably, if the consent terms create a right for the first time as contra distinguished from recognition of a right, registration thereof would be required, if the value of the property is Rs. 100/- and upwards." Also noticing the law in Bhoop Singh's case (supra) the Hon'ble Apex Court was pleased to hold at paragraphs 27, 28 & 29 as follows:- "27. In Bhoop Singh (supra), this Court referring to Gurudev Kaur vs. Mehar Singh, AIR 1989 P&H 324 and Ranbir Singh vs. Shri Chand, 1984 Pun LJ 562 as also a decision of the Bombay High Court in Sumintabai Ramkrishna Jadhav vs. Rakhmabai Ramkrishna Jadhav, AIR 981 Bom 52, held:- "13. In Bhoop Singh (supra), this Court referring to Gurudev Kaur vs. Mehar Singh, AIR 1989 P&H 324 and Ranbir Singh vs. Shri Chand, 1984 Pun LJ 562 as also a decision of the Bombay High Court in Sumintabai Ramkrishna Jadhav vs. Rakhmabai Ramkrishna Jadhav, AIR 981 Bom 52, held:- "13. In other words, the Court must enquire whether a document has recorded unqualified and unconditional words of present demise of right, title and interest in the property and included the essential terms of the same, if the document, including a compromise memo, extinguishes the rights of one and seeks to confer right, title or interest in praesenti in favour of the other, relating to immovable property of the value of Rs. 100/- compromise memo shall be compulsorily registered." It was further observed: "16. We have to view the reach of clause (vi), which is an exception to sub-section (1), bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a Court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value of Rs. 100/- or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order. 17. It would, therefore, be the duty of the Court to examine in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the Court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in praesenti in immovable property of the value of Rs. 100/- or upwards in favour of other party for the first time, either by compromise or pretended consent. If a latter be the position, the document is compulsorily registrable." 28. The decision of this Court in Som Dev (supra) did not lay down any law which runs contrary to or inconsistent with the law laid down in Bhoop Singh (supra). Bhoop Singh (supra) was distinguished on fact stating:- "18. Therefore, it was a case of the right being created by the decree for the first time unlike in the present case. Bhoop Singh (supra) was distinguished on fact stating:- "18. Therefore, it was a case of the right being created by the decree for the first time unlike in the present case. In para 13 of that judgment it is stated that the Court must enquire whether a document has recorded unqualified and unconditional words of present demise of right, title and interest in the property and if the document extinguishes that right of one and seeks to confer it on the other, it requires registration. But with respect, it must be pointed out that a decree or order of Court does not require registration if it is not based on a compromise on the ground that clauses (b) and (c) of Section 17 of the Registration Act are attracted. Even a decree on a compromise does require registration if it does not take in property that is not the subject matter of the suit. A decree or order of a Court is normally binding on those who are parties to it unless it is shown by resort to Section 44 of the Evidence Act that the same is one without jurisdiction or is vitiated by fraud or collusion or that it is avoidable on any ground known to law. But otherwise that decree is operative and going by the plain language of Section 17 of the Registration Act, particularly, in the context of sub-clause (vi) of sub-section (2) in the background of the legislative history, it cannot be said that a decree based on admission requires registration. On the facts of that case, it is seen that their Lordships proceeded on the basis that it was treated as a case coming under Section 17(1)(a) of the Act though the scope of Section 17(2)(vi) of the Act was discussed in detail. But on the facts of this case, as we have indicated and as found by the Courts, it is not a case of a decree creating for the first time a right, title or interest in the present plaintiff and his brother. The present is a case where they were putting forward in the suit a right based on an earlier transaction of relinquishment or family arrangement by which they had acquired interest in the property scheduled to that plaint. Clearly, Section 17(1)(a) is not attracted." (Emphasis supplied) In Som Dev (supra), the plaintiff claimed half share in the property. The present is a case where they were putting forward in the suit a right based on an earlier transaction of relinquishment or family arrangement by which they had acquired interest in the property scheduled to that plaint. Clearly, Section 17(1)(a) is not attracted." (Emphasis supplied) In Som Dev (supra), the plaintiff claimed half share in the property. The defence was that the right of the plaintiff having been created under a compromise and the same having not been registered the same could not be enforced as against the contesting defendants or their assignor, the other owner. The High Court opined that the suit was based on a family settlement which did not require registration and, thus, would come within the purview of Section 17(2)(vi) of the Act. It was on the basis of the said finding of fact, the law was laid down stating: "Of course, we are not unmindful of the line of authorities that say that even if there is inclusion of property that is not the subject-matter of the suit, if it constitutes the consideration for the compromise, such a compromise decree would be considered to be a compromise relating to the subject-matter of the suit and such a decree would also not require registration in view of clause (vi) of Section 17(2) of the Registration Act. Since we are not concerned with that aspect here, it is not necessary to further deal with that question. Suffice it to say that on a plain reading of clause (vi) of Section 17(2) all decrees and orders of the Court including a compromise decree subject to the exception as regards properties that are outside the subject-matter of the suit, do not require registration on the ground that they are hit by Section 17(1)(b) and (c) of the Act. But at the same time, there is no exemption or exclusion, in respect of clauses (a), (d) and (e) of Section 17(1) so that if a decree brings about a gift of immovable property, or lease of immovable property from year to year or for a term exceeding one year or reserving an early rent or transfer of a decree or order of a Court or any award creating, declaring, assigning, limiting or extinguishing rights to and in immovable property, that requires to be registered." 29. A statue must be construed having regard to the purpose and object thereof Sub-section (1) of Section 17 of the Act makes registration of the documents compulsory. Sub-section (2) of Section 17 of the Act excludes only the applications of Clauses (b) and (c) and not clause (e) of sub-section (1) of Section 17. If a right is created by a compromise decree or is extinguished, it must compulsorily be registered. Clause (vi) is an exception to the exception. If the latter part of Clause (vi) of sub-section (2) of Section 17 of the Act applies, the first part thereof shall not apply. As in this case not only there exists a dispute with regard to the title of the parties over the passage and the passage, itself, having not found the part of the compromise, we do not find any infirmity in the impugned judgment. The appeal is accordingly dismissed with costs. Counsel's fee assessed at Rs. 25,000/-. Appeal dismissed." Noticing the aforementioned judgments of the Hon'ble Apex Court an Hon'ble Single Bench of this Court in the matter of Smt. Dipali Roy vs. Sri Samir Banerjee, C.O. 668 of 2010, was pleased to, inter alia, hold as follows:- "Under the amended provision of the Civil Procedure Code compromise between the parties in respect of a non-suit property is permissible under Order 23 Rule 3 of the Civil Procedure Code. As such the parties can settle their disputes by compromise in respect of a non-suit property. The validity of the decree, thus, cannot be challenged because of inclusion of a non-suit property within the campus of compromise decree. Now the question is as to whether such a decree requires registration compulsorily. Section 17 Sub-section 2(vi) of the Registration Act provides that if any settlement is made in respect of any non-suit property, the compromise decree passed on the basis of such settlement comprising of such non-suit immovable property is required to be compulsorily registered when such decree creates an interest in such non-suit property in favour of any of the parties in presenti i.e. by present demise. But if no interest is created in such non-suit property in presenti by any compromise decree then can it be said that such a compromise decree is required to be registered? In fact, various decisions were cited at the bar on the said question. Mr. But if no interest is created in such non-suit property in presenti by any compromise decree then can it be said that such a compromise decree is required to be registered? In fact, various decisions were cited at the bar on the said question. Mr. Ray Chowdhury, Learned Senior Counsel, appearing for the petitioner, cited the following decisions of the Hon'ble Supreme Court: (i) In the case of Bhoop Singh vs. Ram Singh Major and Others, AIR 1996 SC 196 (ii) In the case of Som Dev & Others vs. Rati Ram & Another, AIR 2006 10 SCC 788 Mr. Chatterjee, Learned Advocate, appearing for the opposite party also cited the following decisions:- (i) In the case of Rani Hemanta Kumari Devi vs. M/s. Zamindari Com. Limited, 46 Indian Appeals 240 (ii) In the case of Sujoy Kumar Das vs. Smt. Maya Dutta, AIR 1982 Calcutta 222 (iii) In the case of Raj Kumar Rawala vs. Manabendra Banerjee, AIR 2004 Calcutta 294 (iv) In the case of V.B. Dharmayat (deceased) Through LRS vs. Shree Jagadure Tontadrya and Others, 1999 Volume 6 SCC 15 On perusal of the aforesaid decisions, this Court finds that the decision which was cited by Mr. Ray Chowdhury in the case of Som Dev and Others vs. Rati Ram and Another (supra) exhaustively discussed the present issue, after taking into consideration various decisions of different High Courts as well as of the Supreme Court including majority of the decisions cited by Mr. Chatterjee. In my view, the principle which was laid down by the Hon'ble Supreme Court in paragraph 12 of the said decision clinches the issue. Paragraph 12 of the said decision is thus set out herein:- "12. On a plain reading of Section 17 of the Registration Act, with particular reference to clause (vi) of sub-section (2) it is clear that a decree or order of a court and a compromise decree that relates only to the subject-matter of the suit need not be registered on the ground that it is a non-testamentary instrument which purports to or operates to create, declare, assign, limit or extinguish any right to or in immovable property or which acknowledges receipt or payment of any consideration on account of a transaction which brings about the above results. But if a suit is decreed on the basis of a compromise and that compromise takes in property that is not the subject matter of the suit, such a compromise decree would require registration. Of course, we are not unmindful of the line of authorities that say that even if there is inclusion of property that is not the subject-matter of the suit, if it constitutes the consideration for the compromise, such a compromise decree would be considered to be a compromise relating to the subject-matter of the suit and such a decree would also not require registration in view of clause (vi) of Section 17(2) of the Registration Act. Since we are not concerned with that aspect here, it is not necessary to further deal with that question. Suffice it to say that on a plain reading of clause (vi) of Section 17(2) all decrees and orders of the court including a compromise decree subject to the exception as regards properties that are outside the subject-matter or the suit, do not require registration on the ground that they are hit by Sections 17(1)(b) and (c) of the Act. But at the same time, there is no exemption or exclusion, in respect of clauses (a), (d) and (e) of Section 17(1) so that if a decree brings about a gift of immovable property, or lease of immovable property from year to year of for a term exceeding one year or reserving an yearly rent or a transfer of a decree or order of a court or any award creating, declaring, assigning, limiting or extinguishing rights to and in immovable property, that requires to be registered." For giving emphasis on certain portion of the said judgment which is relevant for the present purpose, I underlined those portion of this said judgment. If the principles which were laid down by the Hon'ble Supreme Court in the said decisions is applied in the instant case, then it cannot be held that the non-suit property which was agreed to be given absolutely by the judgment debtor to the decree holder as a consideration for settlement of the dispute relating to the said property, was not the subject-matter of the suit. If the terms of settlement are in the said compromise decree as a consideration for compromise of the dispute relating to the suit property. If the terms of settlement are in the said compromise decree as a consideration for compromise of the dispute relating to the suit property. As such even for inclusion of the said non-suit property in the compromise decree is compulsorily required for validating the said compromise decree. That apart if the terms of the compromise petition are further considered from a different angle, then it will be apparent that by the said decree no interest was created in the non-suit property in favour of the decree-holder in presenti. The use of the expression creates in Section 17(2)(vi) of the said Act, makes it clear that in order to attract the provision, interest in the non-suit property should be created by present demise. The parties simply agreed to transfer the said non-suit property in favour of the decree-holder on a subsequent date by executing a registered deed of conveyance and that too after delivery of possession thereof to the decree holder. It was also agreed between the parties that surrender of lease will be made by the decree-holder in favour of the judgment debtor only after execution and registration of the deed of conveyance for transferring the title in respect of the non-suit property by the judgment debtor in favour of the decree-holder. Thus, in fact, an agreement to create an absolute interest in the non-suit property was entered into between the parties in the said compromise decree and the said non-suit property was introduced in the compromise as a consideration for settlement of a dispute relating to suit property. Thus, no interest in the non-suit property was, in fact, created in favour of the decree holder in presenti. Rather the said compromise decree provides for doing certain further acts by the parties in future for creating an interest in the non-suit property in favour of the decree holder. Thus, such a decree, in my view, does not require registration compulsorily under Section 17 of the said Act for receiving its enforceability by way of execution. In this regard, reliance may be made on the decision cited by Mr. Chatterjee in the case of V.B. Dharmayat vs. Shree Jagadgure Tontadrya & Others (supra) and in the case of Raj Kumar Rawala vs. Manabendra Banerjee (supra), wherein identical issue was discussed. That apart the judgment-debtor has also obtained the benefits under such compromise decree. In this regard, reliance may be made on the decision cited by Mr. Chatterjee in the case of V.B. Dharmayat vs. Shree Jagadgure Tontadrya & Others (supra) and in the case of Raj Kumar Rawala vs. Manabendra Banerjee (supra), wherein identical issue was discussed. That apart the judgment-debtor has also obtained the benefits under such compromise decree. The possession of the lease hold property was handed over by the decree holder to the constituted attorneys of the judgment-debtor in terms of the said compromise decree for enabling them to develop the suit property. As such, in my view, the judgment-debtors, after having enjoyed the benefits under the compromise decree, are estopped from challenging the excitability of such decree for want of non-registration even though for the sake of argument it is accepted that such compromise decree requires registration. The said compromise decree, as it stands, is very much executable. Accordingly, this Court holds that the revisional application deserves no merit for consideration. The revisional application thus, stands rejected." To the mind of this Court the facts noticed by the Hon'ble Single Bench in Dipali Roy's case (supra) are apposite to the facts of the present case. It is found from the Terms of the Agreement entered into by the parties that the non-suit property was introduced in the Compromise Decree as a consideration for compromise of the dispute relating to the suit property. It is also noticed by this Court that by the Compromise Decree no interest was created in the non-suit property in favour of the decree holder in presenti. With further regard to the above useful reference may be drawn to the language of the Compromise Petition filed under Order 23 Rule 3 of the CPC before the Learned Trial Court. At Paragraph 7 of the said Compromise Petition it is found that the settlement was entered into between the parties for development (emphasis supplied) of the entire property including the suit property. It is important to notice that pursuant to filing of the suit the parties took into consideration the changed circumstances (emphasis supplied) for the purpose of arriving at the compromise. It is important to notice that pursuant to filing of the suit the parties took into consideration the changed circumstances (emphasis supplied) for the purpose of arriving at the compromise. The Compromise Decree based on the Terms of the Agreement between the parties recognized the pre-existing right of the plaintiff in the suit property and the parties having compromised for the benefit of development of the suit property as a whole, the pre-existing right of the plaintiff was included in the Terms of the Compromise and therefore became part of the decree. It is relevant to notice that the Agreement between the parties recorded that the plaintiff/ tenant had agreed to vacate the tenanted portion upon clear and specific assurances and undertaking (emphasis supplied) from the Owners and Developers, i.e. the Opposite Parties-defendants that he would be given a permanent accommodation in the non-suit premises developed as a whole. Till such permanent accommodation was given the pre-existing right of the plaintiff/petitioner/tenant stood recognized by grant of a temporary alternative accommodation by the Opposite Party nos. 7 & 8 Developers. Therefore, following the ratio of the judgments of the Hon'ble Apex Court reported in Bhoop Singh's case (supra) and Som Dev's case (supra) which crystallised in K. Raghunandan's case (supra) that if the Compromise Decree were to create for the first time right, title or interest in immovable property of Rs. 100/- or upwards in favour of the decree holder, the same would require registration. However, if the Compromise Decree recognizes a pre-existing right and does not by itself create a new right, title or interest, the same would not require registration. In other words, applied to the facts of this case the recognition of the pre-existing right of the present petitioner/plaintiff/tenant in the suit property is not the same as the conferment of a new right by way of a decree. Therefore, this Court is in respectful concurrence with the view expressed in Dipali Roy's case (supra) that proceeding to recognize the rights of the petitioner/plaintiff/tenant in the Compromise Decree the parties even agreed to bring within their ambit the non-suit property, in the present case for the purpose of development of the suit property, the same would not require registration for executing the Compromise Decree. This Court also notices with respect the judgment in Dipali Roy's case (supra) to the following effect:- "RE – Requirement of registration of such a compromise decree as per Section 17 of the Registration Act: For appreciation of this point certain terms on which such settlement was arrived at, are required to be taken note of. The relevant terms of settlement on which such compromise decree was passed are as follows:- (i) The defendant/constituted attorney shall hand over and deliver the possession of the proposed flat measuring about 900 square feet floor area in the front portion of the second floor of the premises No. 18/57, Dover Lane, Kolkata - 700029 and one car parking space as mentioned in the schedule of the said compromise petition being the non-suit property to the plaintiff within 19 months from the date of passing of the order on the compromise petition. (ii) After delivery of possession of the non-suit property to the plaintiff/decree-holder, the defendant and/or her constituted attorneys will execute a registered deed of conveyance in the name of the plaintiff in respect of the non-suit property. (iii) Simultaneously, the plaintiff will be bound to surrender his right in the lease hold right in the suit property to the defendant and/or her constituted attorneys. The plaintiff will, thus, get the non-suit property in consideration of surrender of his lease hold interest in the suit property. Various other terms and conditions were mentioned therein laying down the modalities for implementation of the terms of settlement on which such compromise decree was based. Thus, it is case where both the suit property i.e. the lease hold property of the plaintiff/ opposite party and the property which was agreed to be given absolutely to the plaintiff by the defendant in consideration of surrender of the said lease hold interest in the suit property, situate in the same premises i.e. premises No. 18/57, Dover Lane, Kolkata-700029. As such the Learned Executing Court held that since the Municipal holding number of both the suit property and the non-suit property are same and identical, the exception which is provided in Section 17(2)(vi) of the Registration Act is not attracted in the instant case. As such the Learned Executing Court held that since the Municipal holding number of both the suit property and the non-suit property are same and identical, the exception which is provided in Section 17(2)(vi) of the Registration Act is not attracted in the instant case. Though, it is true that the Municipal holding number of the premises concerned is same but the suit property and the non-suit property are different as the lease hold interest was created in favour of the plaintiff under the lease in respect of ground floor flats while the non-suit property which was agreed to be given to the plaintiff/ decree-holder by the defendant/judgment-debtor in the front portion of the second floor of the building which was proposed to be constructed by the constituted attorneys in the same premises. Thus, apparently it appears that a compromise was sought to be effected in respect of a non-suit property which was proposed to be constructed in the same premises, but since the non-suit property is different from the suit property, the exception provided in Section 17(2)(vi) is apparently attracted in the instant case." Applying the abovementioned observations of the Hon'ble Single Bench to the facts of the present case and in the backdrop of the above discussion the order impugned dated 3rd September, 2013 is set aside. Title Execution case no. 5 of 2012 shall proceed as maintainable. C.O. 3415 of 2013 is accordingly allowed. There will be, however, no order as to costs.