1958 Supreme(Pat) 108

PATNA HIGH COURT
V.Ramaswami and R.K.Choudhary JJ.
Anantalal Daga
Versus
Debi Prasad Pandey
Appeal From Original Order No. 256 of 1951 ;
Decided On : JULY 25, 1958

A compromise in an execution proceeding which attempts to substitute a new decree for an enhanced sum of money in place of the original decree cannot be recorded by the executing court.

Headnote:

COMPROMISE - EXECUTION OF DECREE - SUBSTITUTION OF NEW DECREE - VALIDITY - [ORDER 21, RULE 2, CIVIL PROCEDURE CODE] - A compromise in an execution proceeding which attempts to substitute a new decree for an enhanced sum of money in place of the original decree cannot be recorded by the executing court.

Fact of the Case:

The judgment-debtors had certain interest in mokarrari tenure of surface right and certain interest in the underground right in Mouzas Tentulia and Thandabari which they mortgaged to the Chotanagpur Bank. Later on they mortgaged the same interest to certain other persons. In the year 1907 the Chota Nagpur Bank instituted a mortgage suit and in execution of the decree passed in that suit it purchased the mortgaged properties. Delivery of possession was obtained by it in due course. In this mortgage suit, however, the subsequent mortgagees were not made parties. Some time in 1929 the subsequent mortgagees assigned the subsequent mortgage to the decree-holders who instituted a mortgage suit, being Mortgage suit No. 54 of 1938, against the judgment-debtors. After litigation up to this Court, a final decree was passed in that mortgage suit on compromise between the parties. According to the terms of that final decree, the dues of the Chota Nagpur Bank up to February, 1940, was fixed at Rs. 57000 and this amount was payable by the decree-holders to the Bank within six months from the date of the compromise. The judgment-debtors were held to be entitled to redeem the mortgaged properties on payment of the amount of Rs. 57000 due on the first mortgage and of the dues of the second mortgage within eight months from that date. On failure of such payment the dues had to be realised by the sale of the mortgaged properties. It appears that decree-holder No. 4, namely, Anantalal Daga, alone paid the above sum of Rs. 57000 to the Chotanagpur Bank in Sept. 1947. There was an amendment of the final decree on 17-9-1949, and later on 14-11:1950 the said Anantalal Daga started execution of the decree in Execution case No. 108 of 1950 under the provisions of Order 21, Rule 15 of the Code of Civil Procedure as the other decree-holders did not join in the execution proceeding. Under the terms of the final decree, as appears from the execution petition, the total amount of the decree including costs amounted to Rs. 82,821/1/-, and the above amount was sought to be realised in that execution case by sale of the mortgaged properties. An objection was filed by the judgment-debtors to the execution of the decree under Sec. 47 of the Code of Civil Procedure and Sec.13 of the Bihar Money Lenders Act. On 17-4-1951 the parties came to terms and a compromise petition was filed, according to which the amount which the decree-holders were to get was settled instead of the above sum of Rs. 82,821/1/- at Rs. 1,05,000, and they were also given interest thereon at seven annas per cent from 1-1-1951. The decree-holders agreed not to proceed with their prayer for sale in the execution case and the amount payable to them was to be realised in that execution proceeding by appointment of a receiver of the mortgaged properties and the abovenamed Anantalal Daga was appointed a receiver on certain terms recited in the compromise petition. It was also stipulated in the compromise that if the said Anantalal Daga could not perform the function of the receiver for any reason, the decree-holders will select one amongst them who will continue to be the receiver. On 7-5-1951, the judgment-debtors filed a petition supporting the compromise and made a prayer for the appointment ol a receiver in terms thereof. The learned Subordinate Judge, however, refused to record the compromise and rejected the application for recording the same and appointing a receiver. The judgment-debtors 1 to 7 thereupon, on 27-7-1951, filed the present appeal in this Court and prayed for an order recording the compromise.

Finding of the Court:

The compromise in the present case, as rightly held by the learned Subordinate Judge, attempted to substitute a new decree for an enhanced sum of money in place of the original decree and such an agreement could not in law be recorded by the executing court.

Issues: Whether a compromise in an execution proceeding which attempts to substitute a new decree for an enhanced sum of money in place of the original decree can be recorded by the executing court.

Ratio Decidendi: A compromise in an execution proceeding which attempts to substitute a new decree for an enhanced sum of money in place of the original decree cannot be recorded by the executing court. Such an agreement is not permissible under Order 21, Rule 2 of the Code of Civil Procedure.

Final Decision: The appeal of the decree-holders-appellants is dismissed with costs.