KAUSHALENDRA PRATAP SAHI Vs. SEN AND SANYAL

JUDGEMENT

(1.) This is a judgment-debtor's appeal arising out of proceedings for execution of a decree. The decree sought to be executed was passed in a suit filed by the respondent against the appellant and one other person J. P. Sahi for recovery of a sum of Rs. 22,765/- in the Court of the Civil Judge of Sultaiipur. The suit was dismissed by the Civil Judge and an appeal was filed by the present respondent in the erstwhile Chief Court of Avadh. During the pendency of the appeal, on 12-12-1944, counsel for the parties made a statement in Court that parties had come to terms and gave the details of the terms on which the parties had agreed requesting that the appeal may be decided in accordance with those terms. Thereupon the Court ordered that "in view of the compromise we order that a decree be passed in terms of the compromise". The terms of the compromise laid down that the suit was to be decreed for a sum of RS. 12000/-against the present appellant alone and the amount was also to be payable in three instalments. The first instalment of Rs. 2000/- was to be paid on or before 12-1-1945. The second instalment of Rs. 4000/- was to be paid on or before 12-5-1945, and the balance on or before 12-11-1945. In case of any default, the whole amount was to become payable and the plaintiff (the present respondent) was to be entitled to execute his decree for the balance remaining due and was also to be entitled to half the costs incurred in both the Courts. There was a stipulation for payment of interest also in case of default. The last paragraph of the terms was as follows : "Defendant 1 is the owner of a house known as 'Unity Lodge' on Rai Behari Lal Road, Trans Gomti Area, Lucknow, and it is argeed that the amount of the decree namely Rs. 12000/- shall be a charge on the house."

(2.) The first two instalments of Rs. 2000/- and Rs. 4000/- were paid but the balance of Rs. 6000/-. which was due on 12-11-1945, remained unpaid. The execution out of which this appeal arises was sought on 5-12-1950, by sale of the house mentioned in the last clause of the terms of the agreement mentioned above.

(3.) Various objections were taken by the appellant against the execution but we need mention only one objection, as that is the only one which has been argued by the learned Counsel for the appellant before us in this appeal. This objection was that the decree, as it had been passed by the Chief Court of Avadh, was not executable by sale of the house mentioned in the decree. This objection was not accepted by the lower Court, which directed the sale of the house and consequently the appellant has come up to this Court.