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Allahbad High Court
JAGDISHSAHAI,K.B.ASTHANA,R.S.PATHAK
Habib Mian - Appellant
Versus
Mukhtar Ahmad - Respondent
Decided On : 12/22/1967
COMPROMISE DECREE - EXECUTION - CONDITIONS - FULFILMENT - LIMITATION - ARTICLE 181 OR 182 OF THE LIMITATION ACT, 1908 - APPLICABILITY.
Fact of the Case:
The plaintiff-respondent filed a suit against the defendants-appellants. The parties entered into a compromise and the suit was decreed in terms of the compromise on March 17, 1952. The compromise provided that the defendants-appellants would pay to the plaintiff-respondent a sum of Rs. 6,500 in four equal annual instalments, the first instalment being payable on March 31, 1953. The compromise also provided that the plaintiff-respondent would get Suit No. 121 of 1951, which was pending before the learned Munsif, Mahmodabad, dismissed within one week. Upon default by the plaintiff-respondent, the defendants-appellants would be entitled to move the Court for dismissal of the suit by producing before it a copy of the compromise. The compromise further provided that the plaintiff-respondent would secure the dismissal of the appeal filed by his aunt, Mst. Roza Bibi, in the High Court. If he did not get the appeal dismissed, then all the conditions of the compromise would be deemed abrogated and the suit would be considered as having been dismissed.
Finding of the Court:
The Court held that the decree-holder was bound to get the appeal dismissed before March 31, 1953, the date on which the first instalment fell due. The period is over one year and it can be reasonably supposed that it was considered sufficient by the parties for the decree-holder to secure the dismissal of the appeal. If within this period the decree-holder failed in getting the appeal dismissed, the suit would be considered as having been dismissed and this would be before the date upon which the first instalment would otherwise have been payable by the judgment-debtors. If the decree-holder succeeded in getting the appeal dismissed within this period, clearly the judgment-debtors would be liable to pay the first instalment on March 31, 1953, in accordance with the terms of the decree and, thereafter, further instalments annually.
Issues: 1. Whether the compromise decree was a conditional one and the decree was not executable. 2. Whether the execution application was barred by limitation as the Article applicable is 181 of the First Schedule of the Limitation Act and not Article 182 of the same Schedule.
Ratio Decidendi: The Court held that the decree-holder was bound to get the appeal dismissed before March 31, 1953, the date on which the first instalment fell due. The period is over one year and it can be reasonably supposed that it was considered sufficient by the parties for the decree-holder to secure the dismissal of the appeal. If within this period the decree-holder failed in getting the appeal dismissed, the suit would be considered as having been dismissed and this would be before the date upon which the first instalment would otherwise have been payable by the judgment-debtors. If the decree-holder succeeded in getting the appeal dismissed within this period, clearly the judgment-debtors would be liable to pay the first instalment on March 31, 1953, in accordance with the terms of the decree and, thereafter, further instalments annually.
Final Decision: The Court allowed the appeal and held that the suit must be deemed to have been dismissed and, in the circumstances, there being no decree which could be executed against the judgment-debtors, the execution application is liable to be dismissed on that ground.
JAGDISH SAHAI, J. :- I have had the advantage of reading the opinion prepared by my brother Pathak, but for reasons stated in this opinion, I am unable to agree with him and have come to opposite conclusions.
2. This second appeal arises out of the proceedings for execution of the decree passed in Civil Suit No. 18 of 1950 of the Court of the Civil Judge, Ghazipur, on 17-3-1952 in terms of the compromise entered into by the parties on that date. The plaintiff to the suit was Mukhtar Ahmad who is respondent in this second appeal. The defendants were Habib Mian and Ishaq Mian, who are the appellants before us.
3. Clause 1 of the compromise deed provides that in view of the compromise arrived at between the parties, a decree in favour of the plaintiff and against the defendant No. 2 for a sum of Rs. 6,500 be passed subject to the condition that the decretal amount shall be payable in four annual instalments. The first instalment would be due on 31st of March 1953 and the remaining instalments shall be payable on March 31 of the succeeding years. In case of default in payment of any instalment, the decree-holder would be entitled to execute the decree for the instalments remaining due.
Clause 2 of the compromise deed is to the effect that the plaintiff would get Suit No. 121 of 1951, which he has filed in the Court of the Munsif, Mahmodabad, dismissed within a period of one week from "today" (17-3-1952). In case the plaintiff does not get the suit dismissed within the aforesaid period, the defendant would be entitled to move the Court for the dismissal of the suit by filing a copy of the compromise deed in that Court.
4. Clause 4 of the compromise deed provides that the plaintiff is responsible to get the appeal filed by his aunt, Mst. Roza Bibi, in the High Court against the decree passed by the Civil Judge, Ghazipur, in suit No. 9 of 1951, dismissed. In case the plaintiff does not get the aforesaid appeal dismissed, all the terms of this compromise would be deemed to have been cancelled and the suit would be deemed to have been dismissed. In case he (the plaintiff) gets the appeal dismissed, the costs of the appeal shall be on the parties.
5. Admittedly the judgment-debtors, Habib Mian and Ishaq Mian, did not make the payment of any instalment though the decree-holder Mukhtar Ahmad got Suit No. 121 of 1951 dismissed within the period of one week of the date of the compromise. On 31st March 1960 the decree-holder applied for execution of the decree and prayed for the recovery of sums due to him in respect of the instalments payable on March 31, 1954, March 31, 1955 and March 31, 1956.
6. The judgment-debtors filed an objection under Section 47, Civil P. C., on 1st of December 1960, objecting the executability of the decree on the ground that the decree-holder had not secured the dismissal of the appeal of his aunt, pending in this Court. The execution Court allowed one month's time to the decree-holder to get the appeal dismissed and file a copy of the dismissal order. On 16th of December 1960, the decree-holder filed a certified copy or the order dismissing the appeal of Mst. Roza Bibi.
7. On 17th of December 1962, the execution Court dismissed the objections of the judgment-debtors under Section 47, Civil P. C. The judgment-debtors objectors filed Appeal No. 9 of 1961 in the Court of the District Judge, Ghazipur. This appeal was dismissed by the learned District Judge on 27-7-1963. Against the decree aforesaid of the learned District Judge, the instant second appeal has been filed in this Court
8. The second appeal came up for hearing before Dhavan, J., who referred it to a larger Bench. The case was then placed before a Bench consisting of S. K. Verma and Rajeshwari Prasad, JJ., who made a reference to a Full Bench. This is how the case has come up before us.
9. The following two questions were raised before Dhavan J. and also before the Bench consisting of S. K. Verma and Rajeshwari Prasad, JJ :-
1. That the compromise decree
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