Judgement

Appeal (No. 12 of 1940) from a decree of the Chief Court of Oudh at Lucknow (February 15, 1940), setting aside a decree of the Subordinate Judge of Sitapur (January n, 1936), which, under the provisions of ss. 5 and 30 of the United Provinces Agriculturists Relief Act (XXVII of 1934) amended a compromise decree, dated July 4, 1933, made in a suit in which the first respondent was the plaintiff, and the present appellants predecessor in title was the defendant.

64 Law. Rep. 71 Ind. App. 56 ( 1943- 1944) Thakur Raghuraj Singh V. Rai Bahadur Lala Hari Kishan Das 165

The following facts are taken from the judgment of the Judicial Committee Thakur Raghuraj Singh, hereinafter called the debtor, now deceased and represented by the present appellant, was the talukadar of a large property in the district of Sitapur. On February 17, 1928, he borrowed from the first respondent (hereinafter called the creditor) a sum of Rs. 1,40,000 at ten per cent, compound interest, with six-monthly rests, on the security of six named villages. On October 25, 1931, he borrowed from the creditor a further sum of Rs. 1,53,000 at twelve per cent, compound interest, with six-monthly rests, on the security of the former six villages and nine additional villages. The date of repayment of both loans was February 17, 1933. On April 25, 1933, the creditor commenced the suit out of which the present pro ceedings arose. It was an ordinary mortgage suit claiming a decree for payment of Rs. 3,88,300, the amount then due to the mortgagees, on default of payment sale of the mortgaged properties, and liberty to apply for the recovery of any balance after sale. The suit did not appear to have been contested the parties arrived at a compromise agreement to be enforced by a decree, and on July 4, 1933, the decree was made by the Subordinate Judge. As amended by the Chief Court it was as follows —

" Civil side decree for sale under the terms of compromise

" (Or. xxxiv r. 4, Act V of 1908 where the court declares " the amount due).

"In the Court of the Subordinate Judge, Sitapur.

“Suit No. 27 of 1933.

" Rai Bahadur Lala Hari Kishan Das, son of " Lala Gobind Prasad, Khunkhunji Road, " Lucknow …. …. …. …. …. …. …. …. …. …. Plaintiff.

"versus

"1. Thakur Raghuraj Singh, son of Thakur " Baldeo Singh, resident and Taluqdar of " Kanmau and Sita Rasoin, District " Sitapur,

"2. Thakur Sheo Ganga Bakhsh Singh, son of " Sheo Dan Singh, resident and Zamindar " of Bilahri, pargana Mahmudabad, " District Sitapur …. …. …. Defendants.

" Claim.- To recover Rs. 3,88,300-2-6 by sale of the " mortgaged property under mortgage-deeds dated " February 17, 1928, and October 25, 1931. Valuation for " jurisdiction of the court and court-fees is Rs. 3,88,300-2-6 " on which a court-fee of Rs. 4,500 has been paid.

" This suit coming on this day of July 4, 1933, in the " presence of Babu Bishambhar Dass, advocate for the " plaintiff, and of Pandit Raj Narain, advocate for defendant 1, " and defendant 2 in person.

" 1. It is hereby declared that the amount due to the " plaintiff on the mortgage mentioned in the plaint calculated " up to this 4th day of July, 1933, is the sum of Rs. 3,88,300-2-6 " for principal, the sum of Rs. 9,648-11-11 for interest on the " said principal, and the sum of Rs. 5,523 for the costs of the " suit awarded to the plaintiff, making in all the sum of " Rs. 4,03,471-14-5 with future interest at 0-8-0 per cent. " per month from July 5, 1933, till payment.

"2. And it is hereby ordered and decreed as follows

" That the said amount with interest be paid in the manner" provided in the compromise which forms

64 Law. Rep. 71 Ind. App. 56 ( 1943- 1944) Thakur Raghuraj Singh V. Rai Bahadur Lala Hari Kishan Das 166

part of this decree." After a schedule of the mortgaged properties " given under " my hand and the seal of the court this 4th day of July, " 1933 " —

" Translation of copy of compromise filed by the parties in " case No. 27 of 1933, decided on 4th July, 1933.

" Rai Ba