FIRM RAMNATH RAMGOPAL GATTANI Vs. FIRM RAMNATH MOOLCHAND

JUDGEMENT

(1.) This appeal arises out of execution proceedings. The circumstances leading to it are as follows: On 23-12-1943 the appellant decree-holder obtained a money decree against the respondent for money. The appeal preferred by the respondent against that decree was dismissed on 10-1-1945. Thereafter an execution petition was filed by the appellant for realisation of the decretal amount. In the course of this execution petition a compromise was arrived at between the parties on 12-81948 whereby the decree-holder settled the entire claim under the decree for a consideration of Rs. 15000/-and the respondents sold two of his houses for consideration of Rs. 8000/- and 5000/- to the appellant and the satisfaction was thus obtained by his decree by the appellant to the extent of that sum of Rs. 13000/-. The balance of the amount of Rs. 2000/-was agreed to He paid within two months. The respondent had also borrowed Rs. 200/- from the appellant for meeting the expenses of stamps required for executing the sale-deeds of the aforesaid two houses. This sum of Rs. 200/- was also agreed to be repaid within two months along with the sum of Rs. 2000/- and it was further agreed that until the balance of decretal amount of Rupees 2000/- and the additional sum of Rs. 200/- borrowed by the respondent was paid the third house of the respondent which had already been attached in execution prior to the settlement was to continue under attachment and in default of payment as stipulated the appellant decree-holder was entitled to have that house sold in realisation of his dues. The aforesaid sum of Rs. 2200/- was to carry interest at Rs. 0-8-0 per cent P. M. Prior to the filing of this compromise petition in court the sale-deeds in respect of two houses had already been executed by the respondent. The respondent after filing the compromise petition did not pay the balance as well as Rs. 200/- which he had borrowed.

(2.) The appellant thereupon tiled the present execution petition No. 12 of 1952 for the recovery of the whole sum of Rs. 2200/- together with interest thereon.

(3.) The respondent objected to this execution on the ground that the amount sought to be recovered cannot be done in the course of execution and that a separate suit for the purpose was necessary. There were other questions raised with regard to the compromise petition being fictitious and without consideration.