BHAIRO KUMAR PRASAD JAIN Vs. JAGAT DIPENDRA PRASAD

JUDGEMENT

(1.) This is an appeal by the judgment-debtor against the decision of the learned single Judge allowing the appeal of the decree-holder respondent in Miscellaneous Appeal No. 216 of 1961. The respondent held a money decree against the appellant for a sum of Rs. 14,000 and odd including costs passed on the 23rd of September, 1955. Execution Case No. 11 of 1955 was started at the Instance of the decree-holder on the 10th of December, 1966. The decree-holder included in the sale proclamation two properties under lot Nos. 1 and 2 which gave rise to a miscellaneous case for valuation of the two lots under Section 18 of the Bihar Money Lenders Act. The executing court assessed the valuation of lot No. 1 at Rs. 38,400 and of lot No. 2 at Rs. 13,660. The appeal of the judgment-debtor against the valuation was dismissed by this court on the 9th of September, 1959. The decree-holder took out sale proclamation in respect of lot No. 1 as the value of that property would cover the entire amount of the decretal dues.

(2.) On the 18th of August, 1960, the judgment-debtor paid a sum of Rs. 1,000 to the decree-holder by virtue of an order dated the 18th June, 1960 when his application for fixing payment by instalments was still pending. It appears that there was some kind of amicable arrangement between the parties which was recorded in an order dated 21-2-1961, the relevant portion of which may be quoted here:

(3.) On the 15th of May, 1961, which was the last date fixed under the terms of the above consent order for depositing the sum of Rs. 3,300 the judgment-debtor filed a petition in court stating that he was able to arrange only for a sum of Rs. 500 and the decree-holder might be directed to accept that amount and. The balance of Rs. 2,800 would be payable to him within two weeks from that date. The decree-holder was reluctant to approve of this arrangement. Accordingly, shortly after the first petition on the 15th of May, 1961, another petition was filed on behalf of the judgment-debtor appellant that he was able to arrange for the entire amount of Rs. 3,300 which he was prepared to deposit and prayed for issue of chalan. When a copy of this petition was served on the lawyer for the decree-holder, he made an endorsement on the back of the original petition saying that if the judgment-debtor was able to get together the entire amount, he was prepared to receive it and the prayer for issue of chalan was a mere pretence. The judgment-debtor, however, did not pay the amount hand to hand to the respondent or his lawyer, but he thought it proper to have the chalan for depositing the amount in court.