CHAUBE MAHENDRA RAO Vs. LALA BISHAMBHAR NATH

JUDGEMENT

(1.) This is an execution first appeal by the judgment-debtors. It came for hearing before a Division Bench on 10 May 1939 when that Bench came to the conclusion that the matter was of great importance and merited a reference to a Full Bench. Certain questions of fact had not been determined satisfactorily by the trial Court and therefore an issue was remitted to the Court below. The Court below returned its findings on the said issue and when the matter came again before the Division Bench on 6 November 1939 the papers were directed to be laid before the Hon ble Chief Justice for the constitution of a Full Bench. The case has now come before us and we have come to the conclusion that the appeal ought to be dismissed. When the execution matter was before the Court below and when the appeal came for hearing before the Division Bench there was the authority of the Full Bench decision of this Court reported in Gobardhan Das v. Dau Dayal and learned Counsel for the parties contended that the observations of the Full Bench supported them. Since then there has been a decision of their Lordships of the Privy Council reported in Oudh Commercial Bank Ltd. Fyzabad v. Bind Basni Kuer and it appears to us that this decision concludes the matter in favour of the decree-holders respondents.

(2.) On 29 March 1924 the respondents obtained a final decree for sale from the Court of the Subordinate Judge of Mainpuri. The first application for execution was made on 6 March 1926 and was for the recovery of Rs. 46,346-13-0 by sale of the mortgaged property. The 20 October 1926 was fixed for sale, but a day previous, that is on 19 October 1926, the parties arrived at a compromise. Under this compromise the decree-holders gave up a small sum of money and received Rs. 6000 in cash with the result that there was a balance of Rs. 41,000 outstanding against the judgment-debtors. The stipulation was that Rs. 2000 were to be paid on 19 December 1926 and the balance was to be paid by annual instalments of Rs. 7000 each, the first instalment being payable on 8 December 1927. It was provided that if any instalment was not paid the result of the instalments could be recovered in a lump sum by auction sale of the hypothecated property in respect whereof a final decree had already been passed and in which decree the said property stood advertised for auction sale. The compromise was presented by the parties and by their pleaders before the Court and the prayer was that an order for postponement of the auction sale may be sent to the Collector's Court at Etawah. It might be mentioned at this stage that the property being ancestral the sale was being conducted through the agency of the Collector.

(3.) As usual, in cases of this kind, some moneys were paid from time to time by the judgment-debtors, but the instalments were not paid on due dates nor in full measure. Out of the sum of Rs. 2000 payable on 19 December 1926, Rs. 1500 were paid on 19 December 1926 and Rs. 500 were paid on 12 January 1927. Out of the sum of Rs. 7000 payable on 8 December 1927, Rs. 2500 were paid on 26 December 1927 Rs. 2500 were paid on 5 June 1928 and Rs. 2000 were paid on 19 December 1928, it would thus appear that there was a default in the payment of the first instalment due on 8 December 1927; the default in connexion with the payment of Rs 2000 due on 19 December 1926 may be ignored inasmuch as that cannot be considered as an instalment under the compromise On. 14 February 1931 the decree-holder certified payment of Rs. 9000 under Order 21 Rule 2 Civil P.C., and on 23 February 1931 the decree- holders filed the present application for execution and it is this application which has given rise to this appeal. It was con tended on behalf of the judgment-debtors in the Court below and it is contended again before us that the decree-holders application for execution dated 23 December 1931 is barred by time. It is further submitted that the compromise that was effected between the parties on 19 October 1926, more than six months after the passing of the decree, was outside the competence of the executing Court and the parties cannot be bound by the same. In connexion with the plea of limitation, it was pointed out that the present application was more than three years from the first application and it was also more than three years from the first default. The submission was that the whole sum became due on 8 December 1927 when under the compromise the first instalment fell due and was not paid.