BAWA SINGH Vs. S. BALBHADAR DASS

JUDGEMENT

(1.) THIS appeal which arises out of execution proceedings has been referred by Mahajan J. for decision by a larger Bench because of the conflict of authority on one of the main points which arose in the case, namely, whether an order based on a compromise in execution proceedings amounts to a subsequent order within the meaning of Section 48(1)(b) of the Code of Civil Procedure.

(2.) THE facts briefly stated are that a decree for Rs. 900/ - was passed in favour of Balbhadar Dass Respondent against Bawa Singh Appellant on 3rd August 1945. When the property of the judgment -debtor was attached in execution, objections were filed under Section 47 of the Code of Civil Procedure by him. The executing Court dismissed those objections. He filed an appeal but before the lower appellate Court a compromise was arrived at between the parties on 13th February 1958. According to this compromise, the judgment -debtor agreed to pay Rs. 650/ - to the decree -holder within nine months of to deposit the aforesaid 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 and 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 time. The judgment -debtor committed a default and the decree -holder had to file an execution application for recovery of the sum of Rs. 650/ - on 23rd January, 1959. That execution was consigned to the record -room on 22nd January 1960 but the attachment was kept alive. The decree -holder filed another application for execution on 19th February, 1960. Two objections were raised by the judgment -debtor to that application, the first being that the land which had been attached could not be attached and secondly, that the application was barred by time. The trial Court upheld the objection with regard to limitation and dismissed the execution application. The lower Appellate Court took a contrary view and has directed that the execution should proceed in accordance with law.

(3.) MR . Amrit Lal Bahri agrees that the law as laid down by the Bench is unexceptionable but he contends that in the present case there was no order of the Court directing the payment of money and.therefore, it could not be said that there was any "subsequent order" within the meaning of Section 48(1)(b) of the Code of Civil Procedure. It is apparent from the order of the lower appellate Court and of the learned Single Judge that after the compromise had been effected between the decree -holder and the judgment -debtor, the Court made an order to the effect that the parties would be bound by the terms of the compromise. This meant that the compromise became a part of the order of the Court and in the compromise itself there was a clear direction that the judgment -debtor was 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. It cannot, therefore, be said that there was no order directing the payment of money at a future date in the present case. Mr. Bahri has relied a great deal on the lahore decision, AIR 1944 Lah 106 but in that case there was no order incorporating the compromise by virtue of which any direction could be spelt out with regard to payment of money. The present case is, therefore, covered by the Division Bench decision of our own Court and the decision of the lower appellate Court must be upheld on the point.