DEORA Vs. DHULCHAND

JUDGEMENT

(1.) This is an appeal by the judgment debtor in an execution case. His basic contention is that the decrees passed against him have ceased to exist, the decree passed on compromise, and incorporated in the order of the executing Court, which was sought to be executed is one including a consideration extraneous to the original decree, and as such unexecutable; the so called fresh decree being, no more than a mere agreement upon the basis of which the decree-holder can at best bring a fresh suit. The executing Court and first appellate Court have rejected, this contention, at the same time they have also refused to order to execute a registered sale-deed of a particular house mentioned in the compromise. They have directed the realisation of two older decrees plus a sum of Rs. 80 advanced by the decree-holder to the judgment-debtor on the occasion of the compromise as a simple money decree, by attachment and sale of the house in the usual manner.

(2.) The judgment debtor has tried to support his position, by caselaw and has urged that it should be examined on a purely legal basis without importing to his disadvantage any notion of morality or fair play.

(3.) The facts of the case are common grounds. As long ago as 1948, the present decree-holder respondent obtained two money decrees respectively for Rs. 373 and Rs. 210. He put them into execution with two different applications numbers respectively, 212 and 213 of 1949 and attached the house mentioned in these proceedings which was already in mortgage to one Siriniwas Balmukund for Rs. 80. About two years later, when nothing particular had emerged out of the execution cases, the parties entered into a compromise which, on their petition was accepted by the executing Court and made part of its order. It was to the following effect. After adding the inter, and costs, and a sum of Rs. 80 paid by the decree-holder to Sriniwas Balmukund on behalf of the judgment debtor for the redemption of the mortgage, the total payable was Rs. 850 (Rs. 770 on account of the decree and Rs. 80 the additional loan). The total was to be paid in four instalments. On default of any instalment the entirety would be payable; and in addition, the house that had been attached was now separately mentioned and was to be deemed to have been sold to the decree-holder by the judgment-debtor. The parties intended that because of this the new decree was to be registered but it was not registered. This need not be discussed any further, as the lower Courts have turned down the decree holder's prayer that the judgment-debtor should be directed to execute a sale-deed.