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Rajasthan High Court · body

1954 DIGILAW 88 (RAJ)

Mohd. Ahmed v. Pannalal

1954-03-31

SHARMA

body1954
SHARMA, J.—This appeal has been filed by the Judgment-debtor against the appellate order of the Civil Judge, Baran holding that the decree-holders application for execution was not time-barred. 2. The facts are that the decree holder obtained a decree against the judgment-debtor Abdul Lateef Khan on the 20th of March, 1937 and the decretal amount was to be paid in yearly instalments of Rs. 50/. each. On failure of any one of the instalments the whole amount was to become due and the decree-holder was entitled to execute the decree for the whole amount. The decree-holder filed an application for execution on the 29th of January, 1940 and while the proceedings for execution were pending a compromise was made between the parties on the 24th of June, 1941 and it was stipulated that the balance of decretal amount was to be paid in yearly instalments of Rs. 75/-. Some instalments were paid, but the balance Rs. 178/14/- remained unpaid for which the decree-holder put in the present application on the 1st May, 1950. The judgment-debtor objected that the decree was time-barred as it could not be executed after twelve years from the 20th of March, 1937, the date on which the decree was passed. The learned Munsif of Chhabra repelled the objection of the judgment debtor. The judgment-debtor went in appeal to the court of the Civil judge, Baran, who has also held that the execution was not barred under sec. 48 of the Civil Procedure Code as twelve years had not expired from the 24th of June, 1941 when the compromise made between the parties was recorded in court. Against this order the judgment-debtor has come in appeal. 3. The only point that has been argued by Mr. K. C. Sanghi on behalf of the appellant is that twelve years should be computed from the 20th of March, 1937 the date on which the decree was originally passed and not from the 24th of June, 1941. He has relied upon the ruling of the Chief Court of Oudh and Patna High Court. The Patna High Court in the case of Bishwa Nath Prasad Mahta vs. Lachmi Narain (1) (AIR 1935 Pat. 380.), held that:— "A subsequent compromise order is not an order contemplated by sec. 48(1)(b)". He has relied upon the ruling of the Chief Court of Oudh and Patna High Court. The Patna High Court in the case of Bishwa Nath Prasad Mahta vs. Lachmi Narain (1) (AIR 1935 Pat. 380.), held that:— "A subsequent compromise order is not an order contemplated by sec. 48(1)(b)". Sec. 48 (l)(b) is as follows :— "Where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree." Oudh Chief Court in the case of Hakim Nahil Husain vs. Syed Ahmed(2) (AIR 1936 Oudh 226.) held that :— "Subsequent order within the meaning of sec. 48 (1) (b) should be passed by court which passed the decree and not an order made in course of execution." This is based on a Full Bench decision of Allahabad High Court in the case of Gobhardhan Das vs. Dau Dayal(3) (AIR 1932 All. 273.). On behalf of the respondent reliance was placed upon later decisions of Allahabad High Court which are based upon a decision of the Privy Council in the case of Oudh Commercial Bank. Ltd., Faizabad vs. Thakurani Bind Bansi Kuer(4) (AIR 1939 P.C. 80.). In that case, their Lordships of the Privy Council observed that the Code contains no general retric-tion of the parties liberty of contract with reference to their rights and obligations under the decree and that in the absence of express statutory authority, it was not possible to regard Order 20, Rule 10 as excluding any possibility of the parties coming to a valid agreement for time to which the Court under sec. 47 will have regard. In the case of Pati Pertab Bahadur Sahi vs. Hari Ram Marwari(5) (AIR 1940 All. 423.), the decree-holder obtained a decree against the judgment-debtor on the 17th May, 1926. On the21st April, 1928 a compromise was entered into between the parties in the execution proceedings by which the decretal money was to be paid in eight yearly instalments, each instalment payable on 31st May. The judgment-debtor paid the first four instalments, but made a default in the payment of the fifth instalment which fell due on 31st May, 1933. On the21st April, 1928 a compromise was entered into between the parties in the execution proceedings by which the decretal money was to be paid in eight yearly instalments, each instalment payable on 31st May. The judgment-debtor paid the first four instalments, but made a default in the payment of the fifth instalment which fell due on 31st May, 1933. The application for execution was made by the decree-holder On 5th July, 1938. It was held that the period of twelve years would be computed from the . date of the default, i.e., from 31st May, 1933, and the application therefore was within time and was not barred by sec. 48. In the Full Bench case of the same High Court in the case of Chaube Mahendra Rao and others vs. Lala Bishambhar Nath and others (1) (AIR 1940 All. 270.), the decree holder obtained a final decree for sale on the 29th January, 1924. Afterwards the parties arrived at a compromise on the 19th October, 1926. During execution proceeding under this compromise, the decree-holder received some amount and with respect to the balance, yearly instalments were fixed. The first instalment was payable on the 8th of December, 1927 and it was provided that if any instalment was not paid the balance of the decretal amount could be recovered in a lump sum by auction sale of the hypothecated property. This compromise was recorded in Court. Some instalments were paid in part. Limitation was computed from the date of the default of these instalments. But the judgment debtor objected that limitation ought to have been computed from the date, the decree was passed. It was observed following the observations of their Lordships of the Privy Council in Oudh Commercial Bank Ltd.(2) (AIR 1939 P.C. 80.) case referred to above that limitation could be computed according to the subsequent compromise. In a Division Bench case of Calcutta High Court in the case of Jatindra Nath Roy Chowdhury vs. Heramba Chandra Roy Chow-dhury and others(3) (AIR 1945 Cal. 154.), the decree was dated the 26th January, 1927 and the compromise was entered between the parties on the 20th July, 1934 whereby the decretal amount was adjusted and the same was to be paid by nine instalments. On default of any one instalment, the decree-holder was entitled to recover the entire decretal amount. 154.), the decree was dated the 26th January, 1927 and the compromise was entered between the parties on the 20th July, 1934 whereby the decretal amount was adjusted and the same was to be paid by nine instalments. On default of any one instalment, the decree-holder was entitled to recover the entire decretal amount. The compromise was recorded in the execution proceedings and the execution case was dismissed. There was a default in the payment of the fifth instalment and on 19th September, 1941, that is to say, more than twelve years after the passing of the decree an execution case was started. The judgment debtor contended that as the decree holder was seeking to execute the original decree dated the 26th May, 1927, and the execution case was started more than twelve years of that date, the execution was barred, while it was argued on behalf of the decree-holder that the limitation would run from the date of the default of the fifth instalment and the execution therefore was within time under sec. 48(l)(b). It was observed that:— "The words "subsequent order" in sec. 84 (1) (b) were not restricted to decree but included order of the execution Court. The order of the executing Court disposing of the compromise was a "subsequent order" within the meaning of sec.48 (1) (b). The limitation for fresh execution application therefore would run from the date of the default in the payment of any instalment." The Bombay High Court too in the case of D. S. Apte vs. Tirmal Hanmant Savnur(4) (AIR 1925 Bom. 503.), took the same view. In view of the observations of their Lordships of the Privy Council in Oudh Commercial Bank(2), case referred to above, the rulings of Allahabad, Calcutta and Bombay High Courts referred to above, appeal more to me, and in my opinion, the words "subsequent order" would include any order passed during execution proceedings on the compromise of the parties recorded in Court. 4. The appeal to my mind has no force and it is dismissed with costs no the contesting respondent.