KANCHANA RAMA KRISHNA RAO Vs. ATYAM VENKATESWARA RAO

JUDGEMENT

(1.) This appeal is directed against the order of the learned Additional District Judge, Eluru given on 29th July, 1964. The material facts are that O.S. No. 19 of 1948 was filed in the District Court, Eluru by one Buragadda Venkataratnam against the judgment-debtors for recovery of Rs. 5,233-12-0 on the foot of a promi sory note dated 4th April, 1945. The suit was compromised and a memo to that effect was filed on 20th July, 1949. A decree on the basis of that compromise was passed. According to the decree the judgment debtors have to pay the decree-holder Rs. 5,330 with interest thereon at 61/4 per centper annum from the date of the decree in full satisfaction of the suit claim and costs (2)the suit amount was to be paid by the judgment-debtors every year before the end of March in a sum of Rs. 1,200 and also the entire interest on the whole decree amount due by then. To meet this, the judgment-debtors had to execute a registered lease in favour of the decree holder for a period of five years in respect of their ponangi land as per the A Schedule of an extent of 6 acres and 40 cents at a rental of 50 kata bags per annum. The judgment-debtors had to execute this lease deed within a month from the date of the decree and to register it and to deliver possession of the property to the decree-holder. The decree-holder had to give credit to the value of these 50 bags at the market rate by the end of March every year. The judgment-debtors had to pay the balance due towards that year's instalment personally. The decree-holder had a first charge on 4 acres and 58 cents in R.S. No. 349 as per B Schedule. For this the judgment-debtors had to execute a registered security bond within a month. The judgment-debtors would also liable to pay the entire cist payable to the Government. If the judgment-debtor failed to execute the above mentioned documents in time or if these properties were brought to sale by other decree-holders and sold and the sales are confirmed, the decree-holder was at liberty to execute the decree for Rs. 6,030 including Rs. 700 then remitted with interest on the whole amount at the above rate without reference to the instalments. If the decree amount was not discharged by the end of the five years' lease, the judgment-debtors had to execute a fresh lease till the debt was discharged fully. If the judgment-debtors failed to do so or if the other creditors or decree-holders of the defendants bring the properties of the judgment-debtors to sale, the decree holder was entitled to execute the decree for the amount then found due to him with interest in full quittance of all the claims existing between the parties by then and the decree holder had to file a full satisfaction memo into Court in respect of the decree in S.G. 91/49 obtained by him against the 4th defendant and also in discharge of a debt due by the 7th defendant to the decree holder. If the judgment-debtors committed any default in respect of any one of the instalments, the decree-holder was at liberty to execute the decree for the whole amount and recover it from the ' B ' Schedule property as a first charge.

(2.) The decree-holder filed E.P. No. 43 of 1952 on 20th July, 1952. This E.P. was however, dismissed on 20th November, 1952, for non-payment of batta. The next E.P. was filed on 18th November, 1955, by one A. Venkateswararao who claimed himself to be the transferee decree holder. During the pendency of this E. P., the parties entered into a compromise The execution petition was closed by an order dated 16th April, 1957, which is as follows ; " Exhibit A-1 marked by consent. Transfer proved ana recogruised. Rajinama filed and recorded. Part satisfaction recorded for Rs. 200 . Time given for balance as per Rajinama. E.P. dismissed." 'The terms of the compromise entered into are the following (as per the judgment of the Court below at page 3) : " (1) The transfer in favour of A. Venkateswararao be recognised for Rs. 3,528-13-7 as prayed for by him in the E.P., (2) That the transferee decreeholder shall treat the decree fully satisfied provided the judgment-debtors pay Rs. 1,250 in all payable in four instalments the first instalment of Rs. 200 to be paid that day, 2nd instalment of Rs. 200 payable on or before 31st May, 1957, the third instalment of Rs. 425 to be paid by or before 31st August and the balance of Rs. 425 to be paid by or before the 31st December, and in case of default by the judgment-debtors of any one of the instalments the transferee decree-holder shall have the liberty to execute the entire decree for the sum of Rs. 3,528-13-11 through Court with costs of the execution after giving credit for amounts that may be paid by that date. For payments the decree-holder shall pass valid receipts." The first instalment of Rs. 200 was paid on 16th April, 1957, on the day when the compromise was entered into. The second instalment of Rs. 200 was paid on 31st May, 1957. The third instalment, which was due on 31st August, 1957, was, however not paid. The decree-holder therefore filed E.P. No. 82 of 1958 on 16th October, 1958, for recovery of Rs. 3,413-15-0 deducting the two instalments which ke had received from the judgment debtors. Notice was ordered to the judgment debtors. They filed counter. In the meanwhile, the 7th judgment-debtor died. As the legal representatives were not brought on record by the decree-holder within the time granted by the Court, the execution petition was dismissed on 7th January, 1960.

(3.) The present E.P. No. 9 of 1963, out of which this appeal arises, was filed on 7th January, 1963. This petition was resisted by the judgment-debtors on the ground that the present execution petition is time barred under section 48, Civil Procedure Code, as the same was filed beyond 12 years from the date of the decree, i.e., 20th July, 1949. 'This contention, however was sought to be met by the decree-holder on the ground that the period has to be computed from the date of default which the judgment debtors had committed in paying the third instalment in pursuance of the compromise entered into between the parties and which was recorded and an order was passed by the executing Court directing the judgment-debtors to pay the intstalments accordingly as that order constituted a " subsequent order '' within the meaning of section 48 (1) (b), Civil Procedure Code. The learned District Judge negatived the contention of the judgment debtors and directed execution of the decree. It is this view of the learned District Judge that is now assailed in this appeal. The principal contention of Mr. C. Padmanabha Reddy, the learned Counsel for the appellants, is that the executing Court was not competent to record the compromise and pass any order in that behalf. It was submitted that the order passed by the executing Court does not come within the ambit of section 48 (I) (b), Civil Procedure Code. It was also contended that the executing Court in fact has not passed any order which can be said to be a "subsequent order", within the meaning of the said provision of law.