MITTHAN LAL Vs. PARWATI

JUDGEMENT

(1.) THIS is judgment-debtors appeal against the order and judgment dated 20-11-1974 of 1st Addl. Civil Judge, Dehradun, in Miscellaneous Appeal No. 39 of 1971, confirming the order of the execution court (Munsif Dehradun) in execution case No. 283 of 1966, rejecting the objections of the judgment-debtor and holding that the application for execution which was moved on 25-11-1966 was within time.

(2.) THE facts giving rise to this appeal, briefly stated, are as follows:- In suit No. 86 of 1953, Parwati v. Mitthan Lal, a decree was passed on 31-3-1954 for the ejectment of the defendant-appellant and for recovery of arrears of rent and mesne profits. An application for execution was moved but the execution was stayed by bringing another suit (Suit No. 115 of 1955). THE stay continued till 10-6-1956 from 10-3-1955. THEre was then a compromise during the execution proceedings in the present suit on 28-5-1957, according to which two years' time was granted to the judgment-debtor to vacate the premises. THE judgment-debtor also paid Rs. 50 towards decretal amount and damages. It was further settled that he would pay further damages in monthly installments of Rs. 16 per month. THE first installment was to be due in July, 1957. It was also stipulated that in default of payment of any installment a total default shall be treated and it would be open to the decree-holder to get the decree for possession executed and to realise the entire decretal amount. THE execution court passed an order dated 28-5-1957 on the basis of the compromise arrived at during execution. It was to the effect that the execution was struck off in part satisfaction in terms of the compromise. It appears that the judgment-debtor did not pay the installments under the compromise nor vacated the premises after the expiry of two years from 28-5-1957. THE decree-holder then applied for execution of the decree in tabular form on 29-11-1966, vide application dated 24-11-1966. THE compromise was referred to and it was stated that the execution was sought because the premises were not vacated in terms of the compromise. THE judgment-debtor raised the objection that the application was barred by time. It was said to be barred by time under Section 48, C.P.C. as it was filed after 12 years of the date of decree, i. e. 22-4-1954. It was further said to be beyond time under Article 182 clause (5) of the Limitation Act as it was filed more than three years after the order was passed on the first application on 28-5-1957. THE executing court took the view that the application was filed within time from 28-5-1959 which was the stipulated date under the compromise on which the premises were to be delivered to the decree-holder. It took the view that it could have been filed within six years from 28-5-1959 under the old Limitation Act. But with effect from 1-1-1964, the period of limitation was extended to 12 years under Article 136. THE lower appellate court confirmed this order of the executing court. It also took the view that the limitation was 12 years from the date when the order became enforceable under Section 48, C.P.C. (old) and Article 136 of the Limitation Act (New). In its opinion, the order became enforceable on 28-5-1959.

(3.) LEARNED counsel for the appellant has mainly argued that the execution was barred under Article 182 clause (5) of the Limitation Act as it was not filed within three years from the date of the order dated 28- 5-1957 passed on the previous execution application. He placed reliance on the case of Yeshwant Deorao v. Walchand Ramchand (AIR 195l SC 16) in which it was held that Section 48, C.P.C. was subjected to the Article 182 of the Limitation Act and it was necessary that the limitation should be kept alive. He also placed reliance on the case of Gobardhan Das v. Dau Dayal 1932 All LJ 365: (AIR 1932 All 273) (FB) in which it was held that compromise during execution proceedings cannot be given effect to under Section 47, C.P.C. and that fresh application for execution has to be filed in every case within three years under Article 182, clause (5) Limitation Act from the date of the order passed on the previous execution application. The Privy Council had dissented from the view that effect could not be given to compromise in execution proceedings in the case of Oudh Commercial Bank Ltd. v. Bind Basni Kuer, AIR 1939 PC 80 : (1939 All LJ 481). It was then held by another Full Bench of this Court in the case of Mahendra Rao v. Bishambhar Nath (AIR 1940 All 270) that the law laid down in 1932 All LJ 365 : (AIR 1932 All 273) was no longer a good law in view of the Privy Council decision. The same view was expressed by a learned single Judge in the case of Bhiki Mal Murari Lal v. Kundan Lal (AIR 1940 All 107). LEARNED counsel for the appellant unfortunately again relied on an overruled Full Bench decision in the case of Mahmood Hasan Khan v. Motilal Banker (AIR 1961 All 1) (FB) in which the majority took the view that the provisions of Order XXIII. Rule 4, C.P.C. 1908 were not placed before the Privy Council. By the majority judgment it was held that a compromise arrived at during execution proceedings could not be enforced in case it had the effect of enhancing the rate of interest. It was, however, held that adjustment of the decree could be recorded in terms of compromise provided it adhered to the original decree and there was no new stipulation. This decision was specifically overruled by the Hon'ble Supreme Court in the case of Motilal Banker v. Maharaj Kumar Mehmood Hasan Khan (AIR 1968 SC 1087) which confirmed the view taken by the Privy Council in the case reported in AIR 1939 PC 80 (supra). The result was that a compromise recorded during the execution proceedings could be given full effect to during execution even though it had the effect of slightly varying the terms of the original decree inasmuch as raising the rate of interest. It can, therefore, be said that the order passed by the executing court on the basis of a compromise can be deemed to be subsequent order under Section 48, sub-section (1) (b), C.P.C. It was so held by the Kerala High Court in the case of Edapally Valia Raja v. Chacko (AIR 1959 Ker 83) and by Punjab High Court in the case of Gopal Chand v. Gobind Sarup (AIR 1963 Punj 363).