KRISHNA IYER NARAYANA IYER Vs. LEKSHMI AMMA

JUDGEMENT

(1.) Judgment debtor 2 in O.S No. 128 of 1110 on the file of the Trichur District court is the appellant before us. His appeal is against an order allowing execution as per E.P. No. 51 of 1124 filed by the decree holder. Pursuant to an earlier execution application, E.P. No. 45 of 1123, certain properties belonging to the judgment debtors were sold in court auction on 4.3.1124. The sale was for an amount of Rs. 8372-8-8 which amount according to the sale proclamation represented the decree debt as on the date of the sale. When the sale was held the decree holder agreed to have the same set aside without the 5 per cent solatium in case the sale amount was paid within a week. The amount was accordingly deposited and the sale reversed. In due course the decree holder withdrew the amount from court. This withdrawal was on 23.3.1124. On 1.4.1124 judgment debtor 1 filed an application (M.P. No. 356 of 1124) to have a correct statement of accounts prepared to ascertain whether the sale was held for the true decree debt or for more. As a result of the investigation started on that petition it was found that larger amounts than that fetched at the sale were really due to the decree holder. Judgment debtor 1 thereafter sought leave of the court to withdraw his petition (M.P. No. 356 of 11124) and the Court rejected the same. The decree holder then filed the present execution petition for the balance decree debt found due pursuant to the enquiry on M.P. 356 of 1124. The appellant's objection to the execution was overruled by the learned Judge in the Court below. Hence this appeal.

(2.) Mr. T.M. Mahalingom Iyer, the learned Advocate who appeared before us on behalf of the appellant, raised two contentions. One was that the payment of the sale price into Court within one week of the sale was in accordance with an agreement or understanding between the parties that such payment will be in full satisfaction of the decree debt. The other contention was that having omitted to make a claim for all amounts in the prior application for execution (E.P. No. 45 of 1123) the decree holder was now precluded from claiming the amount so omitted by means of a fresh execution application. We shall deal with these contentions in their order.

(3.) When the sale was held on 4.3.1124 the court had made a record as follows concerning the circumstances under which it was held: "sold for Rs. 8372-8-8 to the decree holder's Advocate. For confirmation 5.4.1124. Decree holder's Advocate agrees the sale can be set aside without poundage if payment is made within a week as represented by the judgment debtor". If the above shows anything it is only that the understanding related to the reversal of the execution sale and not to anything more. No other construction can according to us be given to those plain and unambiguous words quoted above. There is therefore no need to look into the subsequent conduct of the parties which according to the decree holder would show that the judgment debtors even denied the existence of any understanding even with regard to the setting aside of the sale. Be that as it may according to us the record of the proceeding does not substantiate any agreement as contended before us on behalf of the appellant. It is worthy of notice that both in his objection petition to the execution application and in his memorandum of appeal to this court the appellant had repudiated the existence of any agreement between the parties concerning the deposit or as to its effect. That no man can be permitted to blow hot and cold is a well known doctrine. We merely point this out after having disposed of the contention on its merits.