SADASUKH KABRA Vs. JUGAL KISHORE SINGH

JUDGEMENT

(1.) On 24th Jan., 1947 the appellant Sadasuk Kabra recovered a mortgage decree against the Respondent Jugal Kishore Singh for a sum of Rs.10,518.00. The decree was obtained in Title Suit No.10 of 1944 of the 2nd Court of the Subordinate Judge of 24-Parganas and it was made on compromise and one of its terms was that the decretal amount would be paid in six equal annual instalments, the first of such instalments being made payable on or before 24th Jan. 1948. It was also provided in the compromise petition which was made a part of the decree that, in default of payment of any of the above instalments, the whole of the outstanding decretal amount would be at once recoverable by execution.

(2.) Default having been made in the payment of the very first instalment, the appellant decree-holder put the decree into execution in Title Execution Case No.18 of 1948. The application for execution was filed on 25th Feb., 1948, and, after service of the usual Code of Civil Procedure, the judgment-debtor appeared and prayed for time to file objections.

(3.) On 22nd April, 1948, two applications were filed by the judgment-debtor, one purporting to be under Sec. 47 of the Code of Civil Procedure and Sec. 40 of the Bengal Money Lenders Act and the other under Sec. 36 - apparently under sub-section (6) - the latter Act. The first was registered as Miscellaneous Case No.43 of 1948 and the second was given the consecutive number, namely, Miscellaneous Case No.44 of 1948.