Back
High Court Of Madhya Pradesh
V. R. Newaskar, J.
FIRM RAMNATH RAMGOPAL GATTANI - Appellant
Versus
FIRM RAMNATH MOOLCHAND - Respondents
Civil Misc. Appeal 32 Of 1957
Decided On : 08/21/1959
EXECUTION OF DECREE - COMPROMISE - ADJUSTMENT OF DECREE - BALANCE OF DECRETAL AMOUNT PAYABLE IN INSTALMENTS - AGREEMENT TO PAY INTEREST - WHETHER DECREE EXTINGUISHED - WHETHER BALANCE OF DECRETAL AMOUNT RECOVERABLE IN EXECUTION.
Fact of the Case:
The appellant obtained a money decree against the respondent. The respondent appealed against the decree, which was dismissed. The appellant filed an execution petition to realize the decretal amount. A compromise was reached between the parties, whereby the decree-holder settled the entire claim under the decree for a consideration of Rs. 15000/- and the respondent sold two of his houses for consideration of Rs. 8000/- and 5000/- to the appellant and the satisfaction was thus obtained by his decree by the appellant to the extent of that sum of Rs. 13000/ -. The balance of the amount of Rs. 2000/-was agreed to He paid within two months. The respondent had also borrowed Rs. 200/- from the appellant for meeting the expenses of stamps required for executing the sale-deeds of the aforesaid two houses. This sum of Rs. 200/- was also agreed to be repaid within two months along with the sum of Rs. 2000/- and it was further agreed that until the balance of decretal amount of Rupees 2000/- and the additional sum of Rs. 200/- borrowed by the respondent was paid the third house of the respondent which had already been attached in execution prior to the settlement was to continue under attachment and in default of payment as stipulated the appellant decree-holder was entitled to have that house sold in realization of his dues. The aforesaid sum of Rs. 2200/- was to carry interest at Rs. 0-8-0 per cent P. M.
Finding of the Court:
The court held that the compromise did not extinguish the decree in its entirety and that the balance of Rs. 2000/- payable under the decree and interest thereon could be enforced in execution.
Issues: Whether the compromise extinguished the decree in its entirety.
Ratio Decidendi: The court relied on the decision in Oudh Commercial Bank v. Bind Basni Kuer, 66 Ind App 84: (AIR 1939 PC 80), where their Lordships of the Privy Council held that where there is adjustment of the decree in part and time is given to the judgment-debtor to pay the rest and there is stipulation to nay interest it depends upon the intention of the parties whether the amount remaining unpaid could or could not be enforced in the course of execution proceedings. There is nothing, according to their Lordships in the Code, to prevent the parties to agree to have such payment enforced in the course of execution proceedings.
Final Decision: The appeal was allowed, the order of the lower court dismissing the execution petition was set aside, and the case was sent back to the executing court to secure realization of the balance of Rs. 2000/- together with interest referred to in the compromise agreement.
( 1 ) THIS appeal arises out of execution proceedings. The circumstances leading to it are as follows: On 23-12-1943 the appellant decree-holder obtained a money decree against the respondent for money. The appeal preferred by the respondent against that decree was dismissed on 10-1-1945. Thereafter an execution petition was filed by the appellant for realisation of the decretal amount. In the course of this execution petition a compromise was arrived at between the parties on 12-81948 whereby the decree-holder settled the entire claim under the decree for a consideration of Rs. 15000/-and the respondents sold two of his houses for consideration of Rs. 8000/- and 5000/- to the appellant and the satisfaction was thus obtained by his decree by the appellant to the extent of that sum of Rs. 13000/ -. The balance of the amount of Rs. 2000/-was agreed to He paid within two months. The respondent had also borrowed Rs. 200/- from the appellant for meeting the expenses of stamps required for executing the sale-deeds of the aforesaid two houses. This sum of Rs. 200/- was also agreed to be repaid within two months along with the sum of Rs. 2000/- and it was further agreed that until the balance of decretal amount of Rupees 2000/- and the additional sum of Rs. 200/- borrowed by the respondent was paid the third house of the respondent which had already been attached in execution prior to the settlement was to continue under attachment and in default of payment as stipulated the appellant decree-holder was entitled to have that house sold in realisation of his dues. The aforesaid sum of Rs. 2200/- was to carry interest at Rs. 0-8-0 per cent P. M. Prior to the filing of this compromise petition in court the sale-deeds in respect of two houses had already been executed by the respondent. The respondent after filing the compromise petition did not pay the balance as well as Rs. 200/- which he had borrowed.
( 2 ) THE appellant thereupon tiled the present execution petition No. 12 of 1952 for the recovery of the whole sum of Rs. 2200/- together with interest thereon.
( 3 ) THE respondent objected to this execution on the ground that the amount sought to be recovered cannot be done in the course of execution and that a separate suit for the purpose was necessary. There were other questions raised with regard to the compromise petition being fictitious and without consideration.
( 4 ) AT the hearing only the contention regarding non-executability of the decree in the present context' appears to have been raised. The learned Additional District Judge on hearing arguments held that inasmuch as liability extraneous to the decree was sought to he included in the compromise the decree was extinguished in its entirety. The agreement to pay Rs. 2200/- at interest of annas 8 per cent P. M. according to the learned Judge constituted a fresh contract and the liability thereunder could not he enforced in execution. Consequently he dismissed the execution petition.
( 5 ) THE present appeal is directed against that decision. '
( 6 ) IT is contended by Mr. Dubey for the decree-holder that so far as the sum of Rs. 2000/-, (which remained unpaid) until the realisation of which a house already attached in execution was to continue under attachment, was concerned the parties clearly had intended that the amount ought to be enforced in execution by the sale of the attached house. There is no doubt a fresh borrowing of Rs. 200/- and that sum was also agreed to be repaid by 1210-1948 but there is nothing in the compromise petition to suggest that the decree-holder's right under the decree was extinguished forthwith and a fresh and new right was created which could only have been enforced by means of a separate suit. It was also contended that the term regarding repayment of Rs. 200/- is clearly severable from the rest of the terms and that therefore there was no legal impediment in enforcing realisation of the balance of Rs. 2000/ payable under the
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
