KAMTA PRASAD Vs. IIND ADDITIONAL DISTRICT JUDGE MAINPURI

JUDGEMENT

(1.) Petitioner as plaintiff filed Suit No. 18 of 1974 against opposite party No. 3 as defendant for the recovery of a sum of Rs. 2200/in the Court of Munsif, Shikohabad. The said suit was decreed on 5/07/1978. Execution Case No. 26 of 1978 was levied for executing the said decree objection under S. 47 of the Civil P. C. hereinafter referred to as 'the Code', filed by the defendant Judgment-debtor was registered as Misc. No. 121 of 1979. By an order dt. 14/08/1980 passed by the learned Munsif, Shikohabad in Misc Case No. 121 of 1979, the objection under Section 47 of the Code was allowed. The plaintiff-petitioner filed Civil Revision No. 148 of 1980. By judgment and order dt. 31/07/1981, passed by the II Additional District Judge, Mainpuri, the said revision was dismissed and the order dt. 14/08/1980 was confirmed. It is against these orders the present writ petition has been moved.

(2.) The learned counsel for the petitioner contends hat prior to the filing of the objection registered as Misc. Case No. 121 of 1979, the judgment debtor had filed another objection to the execution which stood dismissed on compromise between the parties which is Annexure " 1" to the writ petition in which after the objection having been dismissed, the judgment debtor had agreed to make the payment of the decretal amount on 15th May, 1979 and in default his properties would be told on auction. Therefore, according to the learned counsel for the petitioner Mr. R. K. Goswami, the second objection is not maintainable because of the principle of constructive res judicata. It is also contended that the same objections which have been taken in Misc. Case No. 121 of 1979 were also taken in Misc. Case No. 29 of 1979, The judgment debtor having allowed the said objection to be dismissed by agreement, the judgment debtor is estopped from raising the said objection subsequently. He also contends that even on merits, the objection cannot be sustained since S. 18 does not apply to pending suits and it has no manner of retrospective operation in view of the expression used in S. 18 of the U. P. Regulation of Money-lending Act, 1976, hereinafter referred to as 'the Act' with those of the Benami Transactions (Prohibition) Act, 1988. In support of his contention Mr. Goswami relies in the case of R. Rajagopal Reddy v. Padmini Chandrasekharan, (1995) 2 JT (SC) 667 : (1995 AIR SCW 1422).

(3.) The learned counsel for the opposite party Mr. R. K. Misra, on the other hand, contends that by reason of sub-section (4) of S. 26 of the Act, the decree has rendered inexecutable. According to him, by agreement a decree rendered inexecutable by operation of statute can not be revived or made executable. Inasmuch as there cannot be any estoppel against statute. According to him, the said agreement was not a compromise. The same was only postponement of execution which was kept alive and in default was to be executed. He further contends that the principle of res judicata constructive or otherwise, is not attracted in the present facts and circumstances of the case.