Back
IN THE HIGH COURT OF ALLAHABAD
R. N. Gurtu, J.
DURGA PRASAD - Appellant
Versus
MST.GANGA DEI - Respondents
Ex. Second Appeal 472 Of 1950
Decided On : 07/26/1957
EXECUTION OF DECREE - COMPROMISE DURING EXECUTION PROCEEDINGS - VALIDITY - EFFECT OF CONFIRMATION OF SALE - AGREEMENT TO TREAT CONFIRMATION OF SALE AS CANCELLED - POWER OF PARTIES TO ENTER INTO SUCH AGREEMENT - APPLICATION FOR EXECUTION OF COMPROMISE - WHETHER A FRESH APPLICATION OR AN APPLICATION TO REVIVE PREVIOUS APPLICATION - LIMITATION.
Fact of the Case:
A final mortgage decree was passed in favor of the decree-holder in 1938. An execution application was filed in 1938, but it was stayed due to Act X of 1937. After the stay was lifted, the mortgaged property was sold and purchased by the decree-holder at auction. One of the judgment-debtors, Srimati Kalawati, died during the pendency of the execution application, and her heirs were not brought on the record. The decree-holder applied to set aside the auction sale and resell the property, and a compromise was reached between the parties, including the heirs of Srimati Kalawati, to treat the sale as canceled and allow a fresh sale under the decree. The decree-holder later applied for execution of the decree in terms of the compromise, but the courts below held that the compromise was unlawful and the application was barred by limitation.
Finding of the Court:
The court held that the compromise between the parties was valid and enforceable in execution proceedings. The court relied on the Privy Council case of Oudh Commercial Bank Fyzabad v. Bind Basni Kuer, which held that a fair bargain may be entered into between the parties relating to the execution of the decree in execution proceedings, and if the nature of the agreement is such that the execution application in connection with which that agreement is made cannot be deemed to have been finally disposed of as having been satisfied, then a subsequent application made for enforcement of the agreement is merely in the nature of an application to revive the prior application. The court also held that the fact that the sale had been confirmed did not make it impossible for the parties to agree that the confirmation of sale should be considered as canceled, and that the dismissal of a previous objection under Order 21 rule 90, C. P. C. did not prevent parties from agreeing to treat the sale as canceled.
Issues: 1. Whether the compromise between the parties was valid and enforceable in execution proceedings? 2. Whether the fact that the sale had been confirmed made it impossible for the parties to agree that the confirmation of sale should be considered as canceled? 3. Whether the dismissal of a previous objection under Order 21 rule 90, C. P. C. prevented parties from agreeing to treat the sale as canceled?
Ratio Decidendi: 1. The court held that the compromise between the parties was valid and enforceable in execution proceedings, relying on the Privy Council case of Oudh Commercial Bank Fyzabad v. Bind Basni Kuer, which held that a fair bargain may be entered into between the parties relating to the execution of the decree in execution proceedings, and if the nature of the agreement is such that the execution application in connection with which that agreement is made cannot be deemed to have been finally disposed of as having been satisfied, then a subsequent application made for enforcement of the agreement is merely in the nature of an application to revive the prior application. 2. The court held that the fact that the sale had been confirmed did not make it impossible for the parties to agree that the confirmation of sale should be considered as canceled. 3. The court held that the dismissal of a previous objection under Order 21 rule 90, C. P. C. did not prevent parties from agreeing to treat the sale as canceled.
Final Decision: The court allowed the appeal, set aside the judgments and decrees of the courts below, and directed that the decree be executed in accordance with the agreement arrived at between the parties.
( 1 ) THIS is a execution second appeal. The appellant is the decree-holder. A final mortgage decree was passed in favour of the decree-holder on the 13th August 1938. One of the Judgment-debtors under the decree was Srimati Kalawat. On the 12th September 1938 an execution application was made. On account of Act X of 1937 the execution was stayed, It was, however, revived. The mortgaged property was sold and purchased by the decree-holder at auction. An objection under order 21 Rule 90 of the Civil Procedure Code was filed by the judgment-debtors which was dismissed on the 2nd August 1941 whereafter the sale was confirmed on 11th of August 1941 and the execution case was struck off in part satisfaction. Subsequently on 18th of September 1944 a sale certificate was granted to the decree-holder purchaser. Thereafter on the 30th of november 1944 the decree-holder acution-purchaser applied for possession over the property purchased by him at auction sale.
( 2 ) SRIMATI Ganga Dei and Srimati Tarawati are the heirs of Smt. Kalawati who had died during the pendency of the execution application. They were not brought on the record of the execution application. Srimati Ganga Dei offered resistance to the delivery of possession. Her claim was investigated and it was held by the execution court that the one-third share of Srimati Kalawati was not affected by the auction sale in favour of the decree-holder because of the failure to implead her heirs after her death.
( 3 ) THEREUPON the decree-holder filed an application praying that the auction sale should be set aside and that the sold property should be resold again. To that application all the judgment-debtors including. Srimati Ganga Dei and Srimati Tarawati, heirs of Srimati Kalawati were implead-ed. That application was rejected on the 10th of September 1945. An appeal was preferred and during (the course of the appeal a compromise was arrived at between the decree-holder auction-purchaser and all the judgment-debtors including the impleaded legal representatives of Srimati Kalawat. The compromise was in the following terms:
"baham fariqain, tasfiya hogaya ha. Appeal manzur kardiya jawe. Nilam jayedad yani kul makan nizai jo ijrai sabqa me ho chuka hai woh mansuq kerdiya jawe. Madyunan respondent an jo raqam degree ki alawa kharcha ijrai subqa wa hai ki wajibulada hogi uski adayegi ke zimmedar rahengey aur degree ko dobara ijra karaneka haq decreedar ko hoga lekin berbinaya nilam sabqa ko haq decreedar bahaisiyat mushari ke hasil na hoga. Kul makan nilamsuda ke malik madyunan hain aur fahenge tawaqteke woh dubra degree men nilam na howe ya degree ada na ho jawe"
.
( 4 ) ON the 15th of March 1947 an application was made for execution of the decree in terms of the compromise arrived at on the 12th of September 1946. The learned Munsif held that the compror mise was unlawful inasmuch as the auction sale having been confirmed and having become absolute could not be set aside later in the course of the execution proceedings by an agreement between the parties. It also was of the view that the compromise dated 12th of september 1946, which permitted a fresh sale under the mortgage decree after the expiry of the period of limitation, was unlawful. Upon an appeal by the decree-holder the court below upheld the view of the learned Munsif and dismissed the appeal. This second appeal is by the decree-holder.
( 5 ) MR. Briji Lal Gupta appearing for the appellant has argued that it was open to the parties to enter into a compromise during the course of execution proceedings and that the executing court was bound to give effect to the compromise. His contention further was that the present application was only an application to revive the original execution proceedings initiated on 12th of September 1938. He claims that inasmuch as on the 12th of September 1946 there was an agreement to treat the sale held pursuant to the execution application dated 12th of September 1938 as no long
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
