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1961 Supreme(P&H) 152
PUNJAB & HARYANA HIGH COURT
Harbans Singh, J.
Ram Chand Gupta
Versus
Wazir Chand
Execution First Appeal No. 213 of 1959,
Decided On : AUGUST 23, 1961
The parent Court retains seisin of the execution and is not deprived of its jurisdiction pending the receipt of a report from the transferee Court.
Headnote:
EXECUTION - JURISDICTION - TRANSFER OF DECREE - PARENT COURT RETAINS JURISDICTION - ADJUSTMENT OF DECREE - LIMITATION - SUB-RULE (3) OF RULE 2 OF ORDER 21, CIVIL PROCEDURE CODE, 1908 - OMISSION BY PUNJAB RELIEF OF INDEBTEDNESS ACT - EFFECT - COMPROMISE - WAIVER OF DEFAULT CLAUSE - ACCEPTANCE OF OVERDUE INSTALLMENTS - EFFECT.
Fact of the Case:
The decree-holder obtained a decree against the judgment-debtor for the recovery of a sum of Rs. 10,500/- and costs. The decree was obtained on the basis of a claim which one Prabh Dayal had against the judgment-debtor and which was purchased by the decree-holder for a sum of Rs. 6,000/-. After the decree was passed, the judgment-debtor contemplated filing an appeal but was persuaded by an advocate, who was a relation of both parties, to arrive at a settlement. A settlement was reached by which the decree-holder agreed to accept Rs. 9,500/- in full and final settlement of his decree, out of which Rs. 3,000/- were paid on that very day. The balance of the amount was to be paid in installments. All the installments were paid except for the last installment of Rs. 1,000/-. The decree-holder filed an execution application at Amritsar which was dismissed in default. The next application was filed on 6th of August, 1956 and the same was also dismissed in default on 24th of August, 1957. The decree-holder put in another application and got the decree transferred to Kanpur Court where some assets of the judgment-debtor were attached. An objection was taken on behalf of the judgment-debtor that by virtue of a compromise, the decree was to stand discharged on payment of Rs. 9,500/- and that the entire amount having been paid, nothing was due. This application was however, dismissed on the short ground that in view of sub-rule (3) of Rule 3 of Order 21 or the Code of Civil Procedure, the adjustment of the decree, which in this case, had not been certified could not be taken into consideration by the transferee Court. The judgment-debtor filed an application in the Court of the Senior Subordinate Judge which had granted the decree alleging once again the settlement aforesaid and the fact that the decree had been entirely satisfied. The decree-holder raised two preliminary objections. First that in view of the fact that a similar application under Order 21, Rule 2, filed in the Court of the Civil Judge, Kanpur, had been dismissed on 25th of May, 1957, the matter was res judicata and that the present application did not lie, and, consequently, the parent Court had no jurisdiction to deal with this matter because execution had been transferred to the transferee. Court and was still pending there. On merits it was denied that there had been a compromise as alleged or any compromise whatever, and that the payments received by the decree-holder were towards the decree and not by virtue of any compromise or settlement. The executing Court framed the following three issues: (1) Whether the decree has been wholly adjusted as alleged? (2) Whether the present objections are barred by res judicata? (3)Whether this Court has no jurisdiction?
Finding of the Court:
The Court held that the parent Court retained powers to deal with the matter arising out of execution. It also held that there was a compromise as alleged and that the payments had been made in pursuance of the settlement. However, it held that there was no waiver by the decree-holder and that the defaults were made in the payment of the instalments on due dates and, consequently, the decree cannot be said to have been adjusted. Issue No. 2 was also held against the judgment-debtor. But on issue No. 3 it was held that the Court had jurisdiction to go into the question.
Issues: 1. Whether the decree has been wholly adjusted as alleged? 2. Whether the present objections are barred by res judicata? 3.Whether this Court has no jurisdiction?
Ratio Decidendi: 1. The parent Court retains seisin of the execution and is not deprived of its jurisdiction pending the receipt of a report from the transferee Court. 2. The application given by the judgment-debtor which purported to be under Order 21, Rule 2, sub-rule (2) was not barred by limitation. 3. The decision of the Kanpur Court (copy Exhibit D. H. 2) did not bar the parent Court at Amritsar to go into the question of adjustment. 4. There was a compromise as alleged by the judgment-debtor and the decree had been adjusted in terms of the compromise. 5. The decree-holder had waived his right to recover the entire amount on default of any installment.
Final Decision: Appeal allowed. Decree stands fully discharged and no further amount is due to the decree-holder.
1. This execution first appeal has arisen in the following circumstances; Wazir Chand decree-holder obtained a decree on 9th of July, 1951, against Ram Chand judgment-debtor for the recovery of a sum of Rs. 10,500/-. He was also awarded costs which were assessed at Rs. 1,221/2/-. This decree was obtained on the basis of a claim which one Prabh Dayal had against the judgment-debtor and which was purchased by Wazir Chand for a sum of Rs. 6,000/-. The case for the judgment-debtor is that after this decree had been passed against him, he contemplated filing an appeal at Simla. But Mr. Ved Vyas, an advocate of Chamba, who is a relation of Ram Chand, being his brother-in-law, and who was also related and intimately known to Wazir Chand decree-holder being the legal adviser of a firm in which Wazir Chand was a partner, tried to persuade Wazir Chand to arrive at a settlement and on 7th of October, 1951 the parties met at Amritsar. There, a settlement is said to have been arrived at by which the decree-holder agreed to accept Rs. 9,500/- in full and final settlement of his decree and out of that Rs. 3,000/- were admittedly paid on that very day. The balance of the amount of Rs. 6,500/- was to be paid as follows:
(1) Rs. 1,000/- in January, 1952.
(2) Rs. 1,500/- in April, 1952.
(3) Rs. 2,000/- in September, 1952.
(4) Rs. 2,000/- in January, 1953.
It is a common case of the parties that the first instalment of Rs. 1,000/- was paid in time while the balance of the amount was paid as follows: (1) Rs. 1,500/- on 7th of May, 1952.
(2) Rs. 1,000/- on 3rd of October, 1952.
(3) Rs. 1,000/- 21st of February, 1953.
(4) Rs. 1,000/- 23rd of July, 1953.
(5) Rs. 1,000/- in August, 1953.
All these payments were accepted apparently without any demur though there was a provision in the agreement that in case there was a default in payment of any installment, the decree-holder will be entitled to execute and recover the entire balance of the decretal amount. It is further clear from the record that no further payment was made by the judgment-debtor after August, 1953. The decree-holder filed an execution application at Amritsar on 1st of July, 1954. No notice was issued in that application and the same was allowed to be dismissed in default on 7th of August, 1954. The next application was filed on 6th of August, 1956 and the same was also dismissed in default on 24th of August, 1957. Some time later the decree-holder put in another application and got the decree transferred to Kanpur Court where some assets, being bank accounts, of the judgment-debtor (who works as a chartered Accountant there) were attached. An objection was taken on behalf of the judgment-debtor in that Court that by virtue of a compromise, the decree was to stand discharged on payment of Rs. 9,500/- and that the entire amount having been paid, nothing was due. This application was however, dismissed on 25th of May, 1957, on the short ground that in view of sub-rule (3) of Rule 3 of Order 21 or the Code of Civil Procedure, the adjustment of the decree, which in this case, had not been certified could not be taken into consideration by the transferee Court.
2. On 12th of October, 1957, the application, out of which the present appeal has arisen, was filed on behalf of the judgment-debtor in the Court of the Senior Subordinate Judge which had granted the decree (thereinafter referred to as the parent Court) alleging once again the settlement aforesaid and the fact that the decree had been entirely satisfied. This application purported to be under order 21, Rule 2 of the Civil Procedure Code and S. 151 of the Code, and the prayer made was that after issue of a notice to the decree-holder, the satisfaction of the decree may be certified in view of the compromise and the payment our of Court. In this application details were given to the effect that the compromise was brought about through the intervention of Mr. Ved Vyas advocate, who was a common relation and friend, and that the
