CHHAGANLAL KALIDAS Vs. FARASRAM KURNASHANKAR

JUDGEMENT

(1.) This is an application for execution of the decree obtained by one Karunashankar Aditram on the 18th May 1915 on a mortgage of a house executed by the defendant. The decree was for Rs. 662-15-0 including costs and the amount was made payable by annual instalments of Rb. 60 commencing from the 15th April 1916. Karunashankar died in October 1915, leaving a widow and a minor son. On the 6th September 1916 the widow and Deputy Nazir of the District Court were appointed guardians of the property of the minor and on 10th January 1917 the widow and the Deputy Nazir presented this Darkhast for the recovery of the first instalment of Rs. 60 due on the 16th April 1916. The defendant contended that shortly after Karunashankar s death he compromised the decretal debt with the widow as the mother and natural guardian of the minor for Rs. 350 and paid that amount to her in two sums of Rs. 200 and 150 and the decree duly endorsed by her as fully satisfied.

(2.) Under Section 71 of the Dekkhan Agriculturists Relief Act, Section 258 of the Code of 1882 did not apply to a payment out of Court in any proceeding under the Dekkhan Agriculturists Belief Act in any case when the payment was either admitted or proved.

(3.) Therefore the executing Court in this case was entitled to take into account, in spite of the provisions of Order XXI, Rule 2, the payment made to the decree- holder, by the mother of the minor, although it was not certified; but it does not follow that the Courts are precluded from considering whether the compromise now relied upon was for the benefit of the minor. Clearly the minor was personally entitled to the benefit of the decree, and under Order XXXII, Rule 7 any agreement or compromise entered into without the leave of the Court would not be binding against the minor. The appellate Judge has considered the question whether the compromise effected by the widow was for the benefit of the minor, and came to a very distinct finding that the compromise was not to his advantage. It is clear, therefore, that the appellant is not entitled to take advantage of the compromise which was neither sanctioned nor recorded by the Court, and the executing Court is entitled to disregard the compromise and merely take into account the money that has actually been paid. Therefore we dismiss the appeal with costs. Shah, J.