SHRI RADHASHYAM MAHAPRABHU Vs. BHASKAR PADHI AND ANR.

JUDGEMENT

(1.) THIS is a decree -holder's appeal against the decision of the Executing Court in a proceeding under Section 47 Code of Civil Procedure.

(2.) THE short facts are that Appellant' obtained a decree for possession of a house and levied Execution in E.P. No. 73 of 1966 for getting possession through Court. When the decree -holder and The Court Officers came to the village for The purpose of taking possession, the villagers intervened and brought about a compromise. The terms of the settlement reached, in the village on that day were that the title of the decree holder in respect of the house is honoured. The judgment debtors would be free to purchase the property for Rs. 3, 500/ -. On the date of agreement Rs. 500/ - was paid out of the consideration money to the decree -holder. The balance amount of Rs. 3000/ - was to be paid on or before 28.2.1968 and the judgment -debtors were to take sale deed from the decree -holder. If judgment -debtors would not comply with the terms of the agreement the advance of Rs. 500/ - would stand forfeited and they would be obliged to vacate possession.

(3.) THE effect of this compromise on the Execution case has now to be determined. In Oudh Commercial Bank v. Bind Basni Kuer : A.I.R. 1939 P.C. 80, their Lordships were dealing with a case of compromise in an execution proceeding. Sir George Rankin delivering the judgment of the Board stated that the Code contained no general restriction of the parties' liberty of contract with reference to their rights and obligations under the decree. In the absence of express statutory authority it is not possible to regard Order 20, Rule 10 Code of Civil Procedure as excluding any possibility of the parties coming to B valid agreement for time to which the Court under Section 47 will have regard. If it appears to the Court, Acting under Section 47, that the true effect of the agreement was to discharge the decree forthwith in consideration of certain promises by the debtor, then no doubt the Court will not have occasion to enforce the agreement in execution proceeding but will leave the creditor to bring a separate suit upon the contract. If, on the other hand, the agreement is intended to govern the liability of the debtor under the decree and to have effect upon the time or manner of its enforcement, it is a matter to he dealt with under Section 47. In such a case to say that the creditor may perhaps have 80 separate suit is to misread the Code, which by requiring all such matters to be dealt with in Execution discloses a broader view of the scope and functions of an executing Court. A fair and ordinary bargain for time in consideration of a reasonable rate of interest cannot be regarded as an attempt to give jurisdiction to a. Court to amend or vary the decree. Such a bargain has its effect upon the parties rights under the decree and the Executing Court under Section 47 has jurisdiction to ascertain its legal effect and to enforce the bargain. The dictum laid down in the aforesaid case has been quoted with approval by their Lordships of the Supreme Court in Motilal v. Md. Hasan Khan, 1968 S.C.D. 907. The agreement of December, 1967 certainly did not wipe out the decree forthwith.