SEHOKUMAR PRASAD SINGH Vs. DEVENDRA NARAIN SINGH

JUDGEMENT

(1.) This miscellaneous second appeal has been filed by the judgment-debtor under the following circumstances. The respondent decree-holder had instituted a suit which had been numbered as Title Suit No. 53/8 of 1947/1948. The suit was for declaration of title and for partition after adjudication of the title. On the 29th of September, 1948, the suit was compromised between the appellant judgment-debtor and the respondent decree-holder. Amongst the properties which were the subject-matter of the partition suit, there was only one item of property about which there was some dispute and by the compromise that property was allotted to the appellant. Certain conditions were, however, imposed upon the appellant. It was agreed between the parties that the appellant will render monetary assistance in the performance of the marriage of one of the sisters of the respondent If the appellant did not so assist, he will be liable to the respondent to the tune of Rs. 1800/-. For the recovery of this amount, the respondent was permitted to give notice to the appellant and in case of failure to pay, the respondent was entitled to recover this amount by taking recourse to the Court of law. The properties allotted to the appellant in the partition suit were charged with this amount of Rs. 1800/-, if it was not paid. It appears that this amount of Rs. 1800/- became due to the respondent, and in 1960 he instituted Money Suit No. 183 of 1960, for the realisation of Rs. 1800/- from the appellant, together with interest on it. An ex parte decree was passed which has been put into execution by the respondent, in Execution Case No. 134 of 1961. The appellant objected to the execution proceeding, substantially upon the following points. It was contended that the decree passed in Money suit No. 183 of 1960 had been passed fraudulently and the appellant had no knowledge of the same. The decree was termed as null and void and inoperative. It was alleged that the decree had been passed by practising fraud upon the Court. It was contended that in view of Section 47 of the Code of Civil Procedure the decree was a nullity and the amount of Rs. 1800/- should have been realised, if at all, by executing the compromise decree passed in 1948. It was alleged that substantial property, worth about Rs. 12,000/-, was being put on sale for executing the decree for a petty amount. According to the appellant proper valuation of the land which can bet sold ought to be fixed. After hearing the parties on the questions raised by appellant judgment-debtor, the learned Munsif held that the appellant was not entitled to any relief claimed. His petition of objection was, therefore, dismissed on contest. On appeal by the appellant judgment-debtor, the learned Additional Subordinate Judge has affirmed the judgment of the learned Munsiff.

(2.) Learned counsel for the appellant has contended that in view of Section 47 of the Code of Civil Procedure, the respondent decree-holder was not entitled to institute Money Suit No. 183 of 1960 and that the decree passed in that suit is a nullity. It is urged that the only remedy that the respondent decree-holder could pursue, by virtue of the alleged breach of the compromise dated the 29th of September, 1948, was that he should have executed the compromise decree. Not having done so, it is argued that the money suit of 1960 was not maintainable. This point had been urged on behalf of the judgment-debtor in both the Courts below and both the Courts have rejected this contention. It appears to me, that the contention raised by the learned counsel for the appellant has rightly failed. The terms of the compromise entered into between the parties have been considered by the learned Munsif in paragraph 6 of his judgment. He has stated that according to the compromise j between the parties, the decree-holder had to give notice to the judgment-debtor to pay Rs. 1800/-, if the judgment-debtor did not render monetary assistance in the marriage of the decree-holder's sister. If the judgment-debtor failed to pay this amount, it had been agreed between the parties that the decree-holder would be entitled to realise the amount through Court. The learned Munsif has inpterpreted this agreement in the sense that the parties had agreed that the amount of Rs. 1800/- could be realised by the decree-holder by a suit, if necessary. The same interpretation has been put upon the agreement between the parties by the Court of appeal below. On the materials on record, I am not prepared to disagree with the interpretation put upon the agreement between the parties by the Courts below. The fact that the amount of Rs. 1800/-has been made a charge on the properties allotted to the judgment-debtor appellant, cannot be a criterion for holding that the parties had contemplated that this amount of Rs. 1800/- could be realised only by executing the decree. For instance, the decree passed on compromise could have been executed within three years. But the marriage of the sister of the decree-holder may have been performed long after three years of the date of the compromise decree or the sister may have reached the marriageable age after three years of the passing of the compromise decree, and, therefore, it is difficult to hold at this stage that the parties had in contemplation the fact that the compromise; decree had to be executed, for the realisation of Rs. 1800/-., if a contingency arose. The decisions to which reference has been made by the learned counsel for the appellant are all distinguishable and they cannot be brought in aid in favour of the contention raised in this case. The first decision relied upon by the learned counsel for the-appellant is the case of Kiran Singh v. Chaman Paswan, AIR 1954 SC 340. Learned counsel has relied upon the dictum of their Lordships in paragraph 6 of their judgment, where it has been stated that:

(3.) Learned counsel has thereafter argued that the milkiat interest, which was also the subject-matter of compromise in 1948, has vested in the State under the Land Reforms Act, and, therefore, that property cannot be sold in the present execution case. It is also argued that the decree-holder has claimed interest but the property had not been charged for the interest, even if it is payable. Some argument has also been advanced on Order 34, Rules 14 and 15 of the Code of Civil Procedure In my opinion, these points do not arise at this stage. If there is any worth in such contentions, they may be taken in the executing Court at appropriate stages. All the contentions which had been raised by the judgment-debtor before the learned Munsif have failed in both the Courts below, and this appeal must also fail.