S KHAN SINGH Vs. TEK CHAND NANDA

JUDGEMENT

(1.) THIS is an appeal against the order of the learned District Judge Jammu. dated 1st of October. 1963. whereby he has rejected the contention of the appellant that he was not liable to pay the decretal amount in a joint decree passed against him and two others namely, Sardar Jagdish Singh and S. Dulla Singh. The facts of the ease are that S. Jagdish Singh who shall hereafter be referred to as the principal debtor had purchased a truck No. J&K 4177, which was financed by the plaintiff decree -holder S. Jagdesh Singh gave two people, the present appellant S Kahn Singh and Dulla Singh as the guarantors for the payment that would be due on the hire purchase agreement dated 19 -9 -1955 Some payments were made but ultimately a pro note for Rs. 6,000 was executed on 26 7 1958 by the principal debtor and two sureties in favour of the respondent No. 1. An agreement was simultaneous executed by these persons in favour of the plaintiff -respondent No. 1. when no payment was made, a suit was instituted by the respondent No. 1 against the three persons as interest, describing Jagdish Singh as the principal debtor, and the two other defendants the appellants and the respondent No. 2 S. Dulla Singh, as the guarantors. After a contest, the suit was decreed on 26 -2 -1962. The judgment of the trial Court in the original suit as well as the decree -sheet described Jagdesh Singh as the principal debtor and the other two defendants as the sureties. Later on it appears that the appellant and Jagdesh Singh put in an application for fixation of instalments, which application was rejected by the trial Court. An appeal was preferred by the principal debtor in this Court, which resulted in a compromise on 11 -3 -1963 before a Division Bench of this Court. In that appeal the principal the principal debtor was represented by S. Malhotra and the present appellant by Mr. L.N. Sharma. The learned counsel for the principal debtor made a statement in Court on that date to the effect that Jagdesh Singh had paid Rs. 500 to the decree -holder, the remaining amount would be paid by the principal debtor to the decree -holder in instalments of Rs. 325 per month beginning from 1 -5 -1963. Every instalment would be paid in the first week on each month. If there was a default of payment of any instalment, the decree -holder would be at liberty to recover the entire amount outstanding in lump by means of execution. This statement of the counsel for the principal debtor Jagdesh Singh was accepted as correct by Mr. Vidya Sagar, counsel for the respondent -plaintiff who also made a statement accepting the statement of the counsel for the appellant, and prayed that the case be decided in accordance with the statement of the counsel for the principal debtor. Further, he stated that the parties would bear their own costs. Mr. L. N. Sharma, the learned counsel for the present appellant, also was present, and the Court passed the following order: - Parties have compromised the case and then statements to that effect have been recorded in Court today. Let an order be made in terms of the statements made by the parties which shall form part of the ` in this case. We have quoted in extenso the proceedings that took place on that date i.e. 11 -3 -1963 in this Court because the disposal of this appeal will mainly hinge upon the proceedings that took place in the case on that date before this Court.

(2.) WHEN no payment was made by the principal debtor to the decree -holder took out execution for the entire amount against the present appellant. He took no action against the principal debtor not did he take out execution against Dulla Singh, the other surety. In this appeal also the learned counsel for the decree holder refused to take any proceedings against S. Dulla Singh put insisted that the entire decretal amount should be realized from kahn Singh, appellant. When execution was taken out against the present appellant, he raised an objection in the trial Court to the effect that as the decree -holder had entered into a compromise with the principal debtor without the consent and concurrence of the appellant, he was discharged and was not liable to pay any amount to the decree -holder under the decree. This plea of the appellant was turned down by the trial Court; hence this appeal.

(3.) WE heard arguments in this case more than once. The parties took adjournments more than once to compromise the case but no compromise was ultimately arrived at, which has made it necessary for us to decide the case ourselves.