Judgement

1 Law. Rep. 66 Ind. App. 84 ( 1938- 1939) Oudh Commercial Bank, Limited V. Thakurain Bind Basni Kuer 12

Appeal (No. 60 of 1937) from a decree of the Chief Court of Oudh (August 13, 1934), which reversed an order of the Subordinate Judge of Fyzabad (November 26, 1932).

In a mortgage suit the Subordinate Judge of Mohanlalganj made a final decree for sale on January 22, 1916. He allowed further interest on the sum awarded at 4 per cent. On the application of the judgment-creditor on September 7, 1916, the decree was transferred to the Subordinate Judge of Fyzabad for execution. On July 3, 1917, an application for sale was made to the Subordinate Judge of Fyzabad and the decree was sent to the Collector for execution. The Court of Wards, who then had charge of the debtors estate, in consideration of time being allowed for payment, agreed to pay interest at 6½ per cent., and made some payments on that footing. In September, 1917, the estate was released by the Court of Wards to the debtor and in December, 1917, the debtor repudiated the action of the Court of Wards and raised objections to the execution of the decree. The objections were dismissed by the Subordinate Judge. Against his order an appeal was taken to the Chief Court by the debtor. The Chief Court held that the interest could not be increased beyond the original 4 per cent, and, with this modification, dismissed the objections. Both parties appealed to the Privy Council and the debtor obtained a stay of execution pending the disposal of the appeal on condition that he would pay interest at 6½ per cent, and that the creditor would withdraw his appeal. The creditor withdrew his appeal and the debtors appeal was dismissed by Order in Council in May, 1921, which was amended by Order in Council on May 25, 1922, to give effect to the agreement to pay 6½ per cent, interest.

On January 16, 1922, the creditor applied to the Subordinate Judge at Fyzabad to restore and continue the execution proceedings and the decree was again sent to the Collector for execution.

A further stay till July, 1922, was obtained by the debtor.

In October, 1922, some of the properties were sold in execution.

In November, 1922, the sale was by agreement cancelled on the debtors undertaking to make certain payments towards the discharge of the debt by October, 1923. These payments were made.

In the meanwhile, the Subordinate Judge of Fyzabad, having learnt from the Collector that payments were being made under the decree, consigned the execution proceedings to the record and returned the papers to Mohanlanganj without notice to the parties.

On April 3, 1924, another agreement was made under which the interest was increased to 8 per cent, and half the amount due was to be paid by April 1, 1925, and the balance by April 1, 1926.

Some payments were made under this agreement.

On March 9, 1927, a final agreement was come to for the payment of the balance and was embodied in a petition to compromise which was sent to and recorded by the Sub ordinate Judge of Mohanlanganj as an adjustment of the decree under Order xxi., r. 2, of the Code of Civil Procedure.

Under this agreement the debt was to be discharged by annual payments with interest at 8 per cent, and the sale proceedings were to remain in abeyance.

Several payments were made under this agreement and were recorded by the Court.

1 Law. Rep. 66 Ind. App. 84 ( 1938- 1939) Oudh Commercial Bank, Limited V. Thakurain Bind Basni Kuer 13

On March 24, 1930, the debtor being then in default, an application was made to re-transfer the decree to Fyzabad for execution and the decree was transferred.

On April 19, 1931, the creditor applied to the Subordinate Judge at Fyzabad for execution in respect of the balance then due.

On this application, which is the one now in question, the Subordinate Judge held that the application was a fresh application within the meaning of s. 48 of the Code, but that the creditor was entitled under Sch. III., r. 11, sub-r. 2, t