HARBANS NARAYAN SINGH Vs. UMA SHANKAR PRASAD

JUDGEMENT

(1.) The only point which arises in this miscellaneous appeal is one of limitation and it arises on the following facts. On 30 November 1932, the respondent obtained an ex parte decree for money against 4he appellants. The decree was first put into execution on 4 April 1935, and the execution was at first resisted by the judgment-debtors, but subsequently on 19 August 1935 the parties entered into a compromise under which the appellants agreed to pay Rs. 1461 in respect of the decretal amount, Rs. 16 as cost of the execution case and Rs. 863 in connexion with a Small Cause Court decree which had been obtained by the respondent against the. appellants. According to the compromise the total sum payable by the appellants came to Rs. 1840 out of which Rs. 271 was remitted by the respondent and it was arranged that the balance of Rs. 1569 would be paid by the appellants in three yearly instalments payable respectively on 19 August 1936,19 August 1937 and 19 August 1938. The judgment-debtors further agreed to pay interest at 6 per cent, per annum on the amount pay able under the new arrangement and they also agreed that the existing attachment of the property of the appellants would continue. The compromise with all the terms stated above was recorded by the Court and the execution case was disposed of according to those terms. As however the appellants failed to carry out the terms of the compromise, the respondent took out a second execution on 19 March 1988 for a sum of Rs. 1569. This time also the appellants filed an objection, but the parties again entered into a compromise by which the appellants bound themselves to pay Rs. 1865 odd on 21 February 1940 and further agreed that the existing attachment of the properties would continue. The present execution case having been filed on 22 April, 1940, the main objection of the appellants is that it is barred by limitation. This objection has been overruled by both the Courts below and hence this appeal.

(2.) The point raised on behalf of the appellants in this Court is that the second application for execution must be ignored, because it was not an application for executing the decree passed in the money suit but an application for executing a new arrangement based on a compromise which the executing Court had no jurisdiction to give effect to. It is contended that the executing Court had no jurisdiction to give effect to the new arrangement on two grounds, firstly, that it had no jurisdiction to fix the instalments which even the Court of first instance which had passed the decree could not fix more than six months after the decree in view of Art. 175, Limitation Act, and secondly, that it had no jurisdiction to include the amount payable under a Small Cause Court decree which was a totally different decree and add, it to the amount of the decree payable under execution. The learned advocate for the appellants in support of this contention relied upon Debi Rai V/s. Gokal Prasad 3 All. 585, Abdul Rahman V/s. Dullaram 14 Cal. 348, Gobardhan Prasad V/s. Bishunath Prasad A.I.R. 1921 Pat. 340, Pradyumna Kumar Mullick V/s. Kumar Dinendra Mullick and Bishwanath Prasad Mahtha V/s. Lachmi Narain A.I.R. 1935 Pat. 380.

(3.) Now, in my opinion, the short answer to the argument which has been put forward on behalf of the appellants is that it is now too late to urge that the second application for execution was one which the Court could not entertain. It seems to me that this is an objection which should have been raised by the appellants when the second application for execution was made. We know that the second application for execution was objected to by the appellants, but they have not placed before us the grounds of their objection in this proceeding. It is, however, admitted that they entered into a fresh compromise which could have been entered into only on the footing that the application for execution was a good application and was one which the Court had jurisdiction to entertain. The question, therefore, of jurisdiction must, by implication, be deemed to have been decided against the appellants. It is contended on behalf of the appellants that in fact there was no decision but the Court did dispose of the execution proceeding on the footing that the application for execution was a good application and could be entertained. In my opinion, therefore, the contention of the appellants must fail and if that contention fails and it is held that the second application for execution was a good application, no question of limitation can arise and the cases cited on behalf of the appellants can have no application.