SHAM LAL CHATTERJEE Vs. HAZARI MAL BABU

JUDGEMENT

(1.) The opposite party in this case is a decree-holder, who obtained an instalment-decree against the petitioners. Instalments were to be paid twice a year, from 1314 to 1325; and there was also a stipulation that if a certain estate, called Lot Chandrabati, was sold out of Court at an adequate price, the sale-proceeds should be paid to the decree-holder and credited against the decretal amount.

(2.) It is not disputed that the two instalments due in 1316 were not paid in full. It has been faintly argued that this did not constitute default, because the terms of the agreement were that the decree-holder should not be entitled to execution, unless these two instalments remained wholly unpaid. But, on referring to the terms of the contract, it seems to us perfectly clear that the meaning of the parties was that if these two instalments were not paid in full, that is to say, if any portion of these two instalments remained unpaid, the decree-holder should be entitled to execute his decree. When this default had been made the decree-holder took out execution against all the property covered by the decree and for the whole balance due to him. The judgment-debtor, petitioner, made no objection; but he asked that Lot Chandrabati only might be sold. This request was agreed to by the decree-holder. Lot Chandrabati was sold; and the sale-proceeds, amounting to Rs. 10,000, were credited against the decretal amount. The decree-holder then took out execution against the remaining property;

(3.) The judgment-debtor has now objected to this execution; and he says that he made these two defaults in 1316 in collusion with the decree-holder; that it was arranged between the parties that he should make these two defaults, in order to give the decree-holder an opportunity of executing his decree, so that Lot Chandrabati, instead of being sold out of Court, according to the stipulation in the compromise, should be sold in execution.