THRESSIAMMA Vs. STATE BANK OF TRAVANCORE

JUDGEMENT

(1.) THIS revision petition is filed against the orders in e. A. Nos. 125 of 1992 and 343 of 1997 in E. P. 140 of 1984 in O. S. 116 of 1982 of the Sub Court, irinjalakuda. 4th judgment debtor in E. A. 125 of 1992 and the petitioner in e. A. 343 of 1997 are the petitioners in the C. R. P.

(2.) M/s. St. Don Bosco Rice and Oil Mills was a partnership concern and the petitioners were partners of the firm. For the purpose of raising funds for the firm, a loan was availed of from the first respondent-Bank and as a security 1 acre and 81/4 cents of property comprised in Survey No. 544/3 of Vadama Village was mortgaged by deposing the title deeds. The property belonged to the first petitioner. Since the loan amount could not be repaid, the first respondent instituted O. S. 116 of 1982 before the Sub Court, irinjalakuda. M/s. St. Don Bosco Rice and Oil Mills and 6 others were made parties. The suit was filed for recovery of an amount of Rs. 33,759. 35.

(3.) AFTER hearing the counsel for the parties, I am of the view that the lower Court was wrong in dismissing the petition as not maintainable. The Court should have directed the parties to adduce evidence regarding the compromise and if it is found that the compromise was valid, then it should have acted accordingly. A similar question arose in the decision reported in Ramagariesan v. Rajah Ayyar, AIR 19 64 Madras 5 3. There the facts of the case were as follows : The Kumbakonam Bank Ltd. obtained a money decree against the appellants, who constituted a joint Hindu Family. The house of the appellants, which was given as security, was sold in execution. The Bank purchased the undivided one-fourth share of the father in enforcement of the charge, and another person purchased the other three-fourth shares. The sales were confirmed. The purchasers obtained symbolic possession of property. The one-fourth share which was purchased by the Bank was purchased by the other auction purchaser. Then he applied for actual delivery of the entire property under 0. 21 R. 95. This petition was disposed of by a compromise between the parties. Under this compromise, the judgment debtors were enable to retain the property themselves if they were to pay a sum of Rs. 27,000/- to the auction purchaser in five instalments spread over nearly five years with an express stipulation that time formed the essence of the contract. The judgment debtors defaulted payment. Then the auction purchaser applied for delivery. Objections were filed by the judgment debtors on the ground that the auction purchaser is no entitled to get the entire rights. In the course of that, the court has to discuss the validity of the compromise and it held as follows: "a Court executing the decree will be competent to enforce an agreement entered into between the decree-holder and the judgment debtor in the course of execution proceedings if the agreement is a lawful one, not extraneous to the decree but on the other hand governs the liability under the decree and relates to the manner of the enforcement". This decision is by a Full Bench of the Madras High court. I respectfully follow the decision. In the above view of the matter, the order in E. A. 343 of 1997 has to be set aside and the matter re-heard. I set aside the order in E. A. 343 of 1997. Consequently, the order in E. A. 125 of 1992 is also set aside. The Court below will look into the validity or otherwise of the agreement set up by the petitioners with the Bank and pass appropriate orders. The C. R. P. is disposed of as above.