MANEKCHAND RAMCHAND MADHEKAR Vs. GANESHLAL GOVARDHAN MARWADI

JUDGEMENT

(1.) The real question in this appeal is whether the judgment-creditor, who is the respondent here, is entitled to bring the properties of the judgment-debtors, the appellants, to sale.

(2.) The question arises this way. The respondent brought a suit on a money claim against the appellants who were traders to recover a sum of Rs. 6,199. Pending the suit the parties arrived at a compromise, under which the respondent agreed to accept a sum of Rs. 5,000 payable by certain instalments. It was further agreed as follows :- The properties mentioned in the application, Exhibit 6 in the suit, are to be security for the said sum of Rs. 5,000, they being considered as mortgaged. The said properties are to remain as security until payment of the moneys. In default of the payment of any one instalment by the defendants, plaintiff do recover the whole of the amount then due, by the sale of the properties mentioned in Exhibit 6. Plaintiff has given remission to the defendants of the rest of the claim and the amount of the costs.

(3.) This compromise was submitted to the Court and was recorded and in accordance therewith a decree under Order XXIII, Rule 3, was made. This decree was acted upon, and the appellants paid the amount of the first instalment. On default of the payment of the second instalment the decree-holder instituted proceedings to carry out the decree, and it is put of these proceedings that the present appeal arises.