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1998 DIGILAW 325 (RAJ)

Binjraj v. Gheesulal

1998-03-04

SHIV KUMAR SHARMA

body1998
Honble SHARMA, J. – Instant revision impugns the order dated Jan. 15, 1997 of the learned District Judge, Balotra whereby the application under Order 7 Rule 11 CPC read with section 11 of the Money Lender Act was dismissed. (2). Brief resume of the facts is that the plaintiff non- petitioner No. 1 Gheesulal (in short the plaintiff) instituted a suit for recovery of Rs. 1,19,700/-, against the de- fendant petitioner Binjraj (in short the defendant) and his surety Mahendra Kumar in the court of District Judge, Balotra. According to the plaint the cause of action arose to the plaintiff on August 23, 1994 by virtue of compromising the execution petition and on October 7, 1995 when according to compromise deed, the money was not deposited and on 24.11.1994 when as per the compromise the remaining salt was not allowed to be lifted and thereafter on 9th Nov. 1995 when notice was given. The defendant No. 1 moved an application under Order 7 Rule 11 CPC read with section 11 of the Money Lender Act, before the learned trial court on the ground that the civil suit was not maintainable and no cause of action arose to the plaintiff, in view of the provisions contained in section 47 and Order 21 Rule 2 CPC. The learned trial court dismissed the application observing that the question as to whether compromise was legal or not, is the bone of contention between the parties and it can be decided after framing the issues. Thus, the application under Order 7 Rule 11 CPC was ordered to be dismissed. (3). Mr. S.D. Vyas, learned counsel appearing for the defendant No. 1 made scathing criticism of the impugned order and canvassed that a bare perusal of the plaint shows that it relates to the execution of the previous decree. As transactions of the previous decree have been made the basis of the suit, the suit is not maintainable as it is barred under Section 47 read with Order 22 Rule 2 CPC. Mr. Vyas, learned counsel also contended that suit is also barred by the provisions of resjudicata. In view of explanation VII of Section 11 CPC, the application under Order 7 Rule 11 CPC ought to have been allowed. Reliance was placed on Motilal Banker vs. Mahmood Hasan Khan (1), M.P. Sreevastava vs. Mrs. Veena (2) and Smt. Chelna and Ors. Mr. Vyas, learned counsel also contended that suit is also barred by the provisions of resjudicata. In view of explanation VII of Section 11 CPC, the application under Order 7 Rule 11 CPC ought to have been allowed. Reliance was placed on Motilal Banker vs. Mahmood Hasan Khan (1), M.P. Sreevastava vs. Mrs. Veena (2) and Smt. Chelna and Ors. vs. Nirbhay Singh and (3). (4). On the other hand, Mr. A.L. Chopra, learned counsel for the plaintiff supported the impugned order and contended that the suit is based on an agree- ment and it is not at all related with the execution. The validity of the document can be adjudged during the trial of the suit and the provisions contained under Order 7 Rule 11 CPC are not attracted. 95). I have given my anxious consideration to the rival contentions and carefully perused the material on record. (6). Motilal vs. Mohmood Khan (supra) was the case where their Lordships of the Supreme Court observed that ``A compromise, entered in an execution proceeding, by which the execution is postponed on the undertakings given by the judgment debtor to pay interest at a rate higher than the decretal rate of interest, is enforceable in the execution proceedings. The executing court can determine all questions relating to the agreement postponing the execution of the decree and the incidental term as to payment of the higher rate of interest. The jurisdiction of the executing court to enforce such a compromise is not taken away by Order 23 Rule 4 CPC. The effect of Order 23 Rule 4 is that Order 23, Rule 3 does not apply to execution proceedings. Independently, of Order 23 Rule 3 the provisions of Order 21 R. 2 and S. 47 enable the executing court to record and enforce such a compromise in execution proceedings. Nor does Order 20, Rule 11(2) affect this power of the executing Court. Order 20, R. 11 enables the court passing the decree to order postponement of the payment of the decretal amount on such terms as to the payment of interest as it thinks fit on the application of the judgment debtor and with the consent of the decree holder. It does not affect the power of the executing court under section 47 and Order 21 Rule 2 CPC. (7). It does not affect the power of the executing court under section 47 and Order 21 Rule 2 CPC. (7). In the case on hand, the agreement entered into between the parties was as under :– eSa egsUnzdqekj iq=k n;kjketh [kkjoky lkfdu ipinjk vkxs Jh ?khlwyky th iq= Jh ?ksojpUn th ywdM+ vksloky ipinjk dks fy[k nsrk gWw fd chatk iq= xsck [kkjoky dk jkthik djds ued 5500 fDoaVy pqdrs ysus nsus isVs fn;k o :i;s 5000@& vxys lky vklkst lqn 15 rd nsuk r; fd;k ftlesa ued dqark ls de mrjk mldh o :i;s 5000@& dh vnk;xh dh ftEesokjh esjh gksxhA [kksMks ij tks ued iM+k gS tks ?khlwyky th mBk,saxs mlesa en~;wu chatk ;k mlds ifjokj dk dksbZ lnL; o vU; dksbZ Hkh vM+pu Mkysxk rks mldh ftEesokjh egsUnzdqekj dh jgsxhA A look at the aforesaid agreement prima facie shows that by executing the same the execution of the decree is not postponed. (8). M.P. Shreevastava vs. Veena (supra) was the case where their Lordships of the Supreme Court discussed the scope of Section 47 and Order 22 Rule 2 CPC. It was held that there is no antithesis between Section 47 and Order 22 Rule 2 CPC, the former deals with the power of the Court and the latter with the procedure to be followed in respect of a limited class of cases relating to discharge or satisfaction of decrees. (9). In Smt. Chelna and Ors. vs. Nirbhay Singh (supra) it was held that : ``14. The trial court is directed to consider the application under Order 7 Rule 11 of the Code and Sec. 11 of the Rajasthan Court Fees and Suit valuation Act, in the light of the aforesaid observations. If it finds after hearing arguments on the application that the valuation put by the plaintiff is arbitrary or absurd, it shall estimate the value at which the suit should be valued and given time to the plaintiff to value the suit accordingly and pay court fees accordingly within the time fixed by the Court. If the Court finds that the valuation is not arbitrary or absurd, the application under Order 7 Rule 11 CPC shall be rejected and the question will be kept open to be raised in the written statement. If the Court finds that the valuation is not arbitrary or absurd, the application under Order 7 Rule 11 CPC shall be rejected and the question will be kept open to be raised in the written statement. On filing of the written statement and framing issues if the court finds that the issue of valuation of the suit and the jurisdiction of the court is an issue of law alone, it shall treat it and decide it as preliminary issues. However, if such an issue is not an issue of law alone but an issue of fact or mixed issue of fact and law, the court shall decide it along with all other issues in accordance with law. (10). I also subscribe this view that for deciding application under Order 7 Rule 11 CPC, the court has to see the averments of plaint and material placed on record by the parties and if it finds that no cause of action arises it can reject the plaint. But in the case on hand, the question raised by the defendant No. 1 relates to the validity of the agrement. From the bare perusal of the agreement and material pla- ced on record, the validity of the said document cannot be adjudged. As already stated in the foregoing paras by me that by entering into compromise the execution proceedings were not postponed. Therefore it is necessary for the defendant No. 1 to file written statement and raise the objections in respect of validity of the said document and the learned trial court after framing issue in respect of maintainabil- ity of the suit can dispose of the matter. (11). Under these circumstances, I am unable to pursuade myself to agree with the submissions made by Shri S.D. Vyas, learned counsel appearing for the defendant No.1. In my view no jurisdictional error has been committed by the court below in passing the impugned order and if it is allowed to stand it would not occa- sion failure of justice. (12). Resultantly, the revision fails and is hereby dismissed. The record of the case be sent back forthwith. I intend to observe that the issue relating to maintainability of the suit shall be decided by the learned trial court as preliminary issue. The parties are directed to appear before the learned trial court on March 27, 1998.