PREM NARAIN Vs. GANGA RAM

JUDGEMENT

(1.) This is a judgment-debtors appeal arising out of an execution proceeding consequent upon the passing of an ex parte mortgage decree dated 24 January 1924 which was made absolute on 10 January 1925. An application for execution was filed on 7 August 1925 and while it was pending the judgment-debtors applied for the setting aside of the ex parte decree on 13 October 1925. There was an interim order staying execution passed on that date. On 24 April 1926 the decree-holder and the judgment-debtors compromised and agreed that the judgment-debtors should be given three months time to pay up the amount by selling a part of the mortgaged property and that if they failed to pay the amount within the time allowed the execution should proceed. This was a written compromise filed in Court and was verified by the parties on 12 May 1926.

(2.) On 22 May, 1926 the Court passed an order striking off the application for the setting aside of the ex parte decree on the ground that the matter had been compromised. Subsequently on 4 June 1926 the office put up a report before the Court referring to the purport of the compromise and pointing out that the decree was to remain in execution for the time being and that the decree-holder would be entitled to sell the property if the amount was not paid within three months. On this the Court ordered: the execution case be struck off for the present without payment being entered. The costs to be borne by the judgment-debtors.

(3.) There is nothing to suggest that the decree-holder agreed to the striking off of his application or that he was informed of it on that date.