BAWA SINGH Vs. BALBHADAR DASS

JUDGEMENT

(1.) THE only question that requires determination in this execution second appeal is whether a compromise recorded in execution proceedings amounts to a subsequent order within the meaning of section 48 (1) (b) of the Civil Procedure Code.

(2.) THE facts of the case are that a decree for Rs. 900/ - was passed in favour of Balbahadar Dass against Bawa Singh on 3rd August, 1945. In execution of this decree, some property of the judgment -debtor was attached. The judgment -debtor filed objections under section 47 of the Civil Procedure Code. He also took an objection that the execution application was barred by time. These objections were rejected by the executing Court. The judgment -debtor preferred an appeal, In the appeal, a compromise was arrived at on 13th February, 1958. According to this compromise, Bawa Singh agreed to pay Rs. 650/ - to the decree -holder within nine months or to deposit the said amount in the Court of the Senior Sub -Judge, Gurdaspur. In case of default, the decree -holder was entitled to receive the amount in execution. The judgment -debtor withdrew all other objections. It was also agreed that if the decree -holder had to file an execution application after nine months as provided in the compromise on default of the judgment -debtor, the application for execution would be deemed to be within limitation. Default was made by the judgment -debtor and the decree -holder made an execution application for the sum of Rs. 650/ - on 23rd January, 1959. Warrants of attachment of land were issued and the land was attached on 17th December, 1959. However, the execution was consigned to the record room on 22nd January, 1960, but the attachment was kept alive. The decree -holder made another application for execution on 19th February, 1960. The same two objections, that is, the land could not be attached and the application was barred by time, were raised. The objection as to limitation prevailed with the trial Court with the result that the application was dismissed. On appeal, the lower appellate Court has reversed the decision, of the trial Court on the question of limitation and has directed that the execution should proceed in accordance with law.

(3.) MR . Bahri who appears for the judgment -debtor relies on a Division Bench decision of the Lahore High Court in Haji Zakeer -ud -Din v. Mt Amtur Rasheed : A.I.R. 1944 Lah. 106=46 P.L.R. 26. This decision fully supports him. Mr. Aggarwal who appears for the decree -holder relies on Bhiki Mal Murari Lal v. Kundan Lal : A.I.R. 1940 All. 107, Chaube Mahendra Rao v. Lala Bishambhar Nath : A.I.R. 1940 All, 270 (F.B) and Chhatra Pati Pertab Bahadur Sahi v. Hari Ram Marwari : A.I.R. 1940 All. 423. He also relies on a decision of Calcutta High Court in Jatindra Nath v Heramba Chandra : A.I.R. 1945 Cal. 154, and on the Lahore High Court in Banarsi Das v. Ramzan A.I.R 1923 Lah. 381. The last case was considered by the Division Bench of the Lahore High Court in Haji Zaheer -ud -Din v. Mt. Amtur Rasheed A.I.R. 1944 Lah. 106=46 P.L.R. 26. There is a conflict of opinion as to whether a compromise -order in execution proceedings amounts to a subsequent order within the meaning of section 48, Civil Procedure Code. There is no direct decision of this Court. It will, therefore, be proper that this matter be settled by a larger Bench. I accordingly direct that the papers of this case be laid before my Lord the Chief Justice for constituting a Division Bench or a Full Bench particularly when there is a Division Bench decision of the Lahore High Court and a Full Bench decision of the Allahabad High Court which need consideration.