PAHALWAN SINGH Vs. NARAIN DAS

JUDGEMENT

(1.) THE sole question which we have to consider is whether the decree, which was under execution in the Court below, is a simple money decree, or whether provision is made in it for something more. THE appellant relies upon a Full Bench ruling of this Court, Janki Prasad V/s. Baldeo Narain (1876) I.L.R. 3 All. 216, and contends that it is a simple money decree and no more. THE circumstances under which the decree was obtained in Janki Prasad V/s. Baldeo Narain (1876) I.L.R. 3 All. 216, and others and the case before us are very similar. In both cases the plaintiff had sued for a decree for sale. In both oases the dispute between them terminated in a compromise. In this case it was agreed that the plaintiff should realize his debt from his debtors by payment of a special sum within a special period and of the remainder by instalments. It further provided that if, after the payment of the first sum within the specified period, two successive instalments should remain in default, the plaintiff would be entitled to take out execution of the decree in a lump sum. After this follow the words which have given rise to this dispute and which we therefore quote here verbatim: "THE property hypothecated in the bond remains hypothecated as before. THE defendants have no power to transfer it. If any other person brings to sale the hypothecated property in satisfaction of the debt due by the defendants the plaintiff shall have power to take out execution of the decree without waiting for the instalments, and to cause the hypothecated property to be sold by auction." If this decree be compared with the decree which was before this Court in Janki Prasad V/s. Baldeo Narain (1876) I.L.R. 3 All. 216, it will be found that the terms hardly differ, and do not differ in any material point, beyond this, perhaps, that the decree before us is a little more positive in granting the right to enforce execution by sale. THEre is however, this very important difference between the present case and the case of Janki Prasad V/s. Baldeo Narain (1876) I.L.R. 3 All. 216, that while in the latter the terms of compromise were not embodied in the decree, and all that the decree did was to refer back to it and provide for payment by instalments only, in the present case, the terms of compromise have been incorporated into the decree and made part and parcel of it. In Janki Prasad V/s. Baldeo Narain (1876) I.L.R. 3 All. 216, the learned Judges held themselves constrained by the terms of the decree and refused to look at what they considered might well have been the intention of the parties. In the present case we are under no such constraint. THE terms of the decree before us undoubtedly go beyond the terms of an ordinary simple money decree and provide for sale under certain contingencies. It is true that the decree differs from a decree formally drawn up under Section 88 of the Transfer of Property Act. But we are satisfied that it was the intention of the parties and of the Court that if default was made in payment of instalments, or if any other contingency mentioned in the decree arise, the decree-holder should be entitled to proceed to sell upon the decree as it stands. Reference was made to the case of Chundra Nath Dey V/s. Burroda Shoondury Ghose (1895) I.L.R. 22 Cal. 813. That case has been distinguished in Lal Behary Singh V/s. Habibur Rahman (1898) I.L.R. 26 Cal. 166. We do not agree with the Court below in the view it took of the Allahabad case cited before it. We are, however, of opinion that in spite of this the Court below came to a right conclusion.

(2.) WE dismiss the appeal with costs.