Phoenix Automobile Sales and Services (P) Ltd. v. Ganeshdas Ramgopal
1989-11-28
S.N.PHUKAN
body1989
DigiLaw.ai
This appeal is against the judgment and order passed by the learned Assistant District Judge, Dibrugarh in Title Suit No. 18 of 1971. The suit has been registered on a petition filed under section 47(2) read with section 151 C. P. C. Though, originally it was registered as a Misc. Case, it was subsequently converted into, the present title suit in view of provisions of sub-section (2) of section 47 C. P. C. as it stood prior to the amendment of 1976. By the impugned judgment, the learned lower Court dismissed the suit and hence the present appeal. 2. In the year 1976 respondent No. 2 herein purchased a motor vehicle, namely, Bedford Truck from the present appellant-plaintiff for a sum of Rs. 34,000/-and odd. Though a part of the consideration was paid for the purpose, there was an agreement between respondent Nos. 1 and 2 and under the said agreement the respondent No. 1 stood a financier and paid the entire amount to the appellant. According to the appellant, he came to know that respondent No. 2 agreed to pay the balance for which there was a hire purchase agreement between the parties. As there was a default in payment of instalments, a suit was filed before the Calcutta High Court by respondent No. 1 against the present appellant and respondent No. 2. The aforesaid suit was decreed on a compromise, The compromise agreement as disclosed in the plaint runs as follows:- The suit was decreed for a sum of Rs. 21,000/-and odd with interest. It was further agreed that the present appellant and respondent No. 2 would pay the said decretal amount in instalments and respondent No. 3 would act as a receiver of the said vehicle without security and remuneration and he would be entitled to take possession of the vehicle and sell the same in the event of default in making of payment in any one instalment. The respondent No. 2 also agreed to hand over possession of the vehicle to receiver in case of such default. It was further directed that on payment of the full amount, the respondent No. 2 would become the absolute owner and further in case of failure to handover the possession of the vehicle, there would be a fur her decree in favour of the respondent No. 1 against the present appellant and respondent No. 2 and damages @ Rs.
It was further directed that on payment of the full amount, the respondent No. 2 would become the absolute owner and further in case of failure to handover the possession of the vehicle, there would be a fur her decree in favour of the respondent No. 1 against the present appellant and respondent No. 2 and damages @ Rs. 50/-per day. 3. The appellant took the plea that he did not receive the notice of the above suit and that Sri Biswanath Nawalgaria who authorised the Solicitor through whom the compromise was affected was not an authorised agent of the plaintiff-appellant. The decree was transferred to Ditrugarh for execution and the amount claimed was Rs. 30,000/-and odd including damages @ Rs. 50/-per day from 28.8.68 to 13.4.1969. According to the appellant, the respondent No. 1 after the decree took possession of the vehicle and sold it at a considerable amount as the vehicle was in good running condition. The execution petition has been filed before the Dibrugarh Court by one Auath Bandhu Deb as an attorney of the respondent No. 1 and according to the appellant he was not duly authorised attorney. 4. In the written statement the material allegations made in the plaint has not been denied including the fact that said Anath Bandhu Deb was not a duly constituted attorney. It was not denied that vehicle was subsequently sold by the respondent No. 1 and that the amount has not been deducted from the decretal amount. On the other hand, it has been pleaded that no claim has been made for the vehicle or its sale proceeds in the present execution proceeding and that respondent No. 1 being the owner of the vehicle had every right to sell the same. 5. On perusal of the impugned judgment, I find that the learned Court in view of the provisions of Order 21 Rule 2 C. P. C. and Article 125 of the Limitation Act dismissed the suit on the ground of limitation as according to learned trial Court the claim for satisfaction of the decree by selling the vehicle was not recorded within the period of limitation. 6. Before the learned trial Court plaintiff examined one witness who has deposed in support of the plaint and no witness has been examined on behalf of the respondents. 7. Mr.
6. Before the learned trial Court plaintiff examined one witness who has deposed in support of the plaint and no witness has been examined on behalf of the respondents. 7. Mr. Baruah, learned counsel for the appellant has urged that the learned trial Court erred in law in holding that the suit was barred by limitation inasmuch as the present plea of the plaintiff-appellant does not come within the ambit of Order 21 Rule 2 C. P. C. On the other hand Mr. Gopal, learned counsel for the respondents has urged that the present petition is not maintainable as section 47 C. P. C. is not applicable to a compromise decree. According to Mr. Baruah compromise decree is also a decree and as such the said section applies. 8..... Section 47 C. P. C. is very wide as all questions arising between' the parties to the suit in which the- decree was passed relating to execution, discharge and satisfaction of the decree shall be determined by the executing Court. This section puts a bar for a separate suit for determination of the aforesaid matters. No restriction has been imposed by the legislature regarding application of this section to a compromise decree, object being that all the aforesaid matters in respect of a decree passed whether on compromise or contest shall have to be decided under this section to put to an end the litigation between the parties. I am, therefore, unable to restrict the provisions of this section by saying that it shall not apply to a compromise decree. Contention of Mr. Gopal is therefore, rejected. 9. Rule 2 of Order, 21 C. P. C. provides for satisfaction of a decree out of Court. Sub-rule (1) of rule 2, inter alia, provides that whether any money payable under decree is paid out of Court or a decree of any kind is otherwise adjusted in whole or in part, the decree-holder shall certify to that effect and it shall be recorded by the Court. Sub-rule (2) of the said rule 2 enables the judgment-debtor to inform the Court of such adjustment or payment and Court shall issue notice on the decree-holder and thereafter proceed with the matter as provided in the said sub-rule. This rule 2 would be attracted when there is payment or satisfaction of the decree by the act of the parties.
Sub-rule (2) of the said rule 2 enables the judgment-debtor to inform the Court of such adjustment or payment and Court shall issue notice on the decree-holder and thereafter proceed with the matter as provided in the said sub-rule. This rule 2 would be attracted when there is payment or satisfaction of the decree by the act of the parties. But that is not so in the case in hand and as such the said rule is not applicable. In the instant case, the plea of the judgment-debtor is that even assuming he was a party to the compromise decree it stood satisfied the moment the decree-holder took custody of the vehicle and sold the same. This is the contention of Mr. Baruah and I find considerable force. 10. Mr. Baruah has drawn my attention to sub-rule (2) of rule 11 of Order 21, C, P. C. The said rule provides the procedure for making a written application for execution of a decree and according to the said sub-rule it is provided that every such application shall be in writing, signed and verified by the applicant or by some other persons proved to the satisfaction of the Court to be acquainted with the facts of the case. According to Mr. Baruah, Anath Bandhu Deb was not an authorised attorney of decree-holder and he was also not acquainted with the facts of the case. P. W. 1 has also deposed in support of the above statement. I also do not find any observation by the learned trial Court that it was satisfied that Anath Bandhu Deb was acquainted with the facts of the case. He has also not came into the witness box. On this ground also, I hold that the execution petition was not in order. 11. From what has been stated above, I find merit in the present appeal. In the result, the appeal is allowed by setting aside the judgment of the learned trial Court. No costs.