QAZI GHULAM AMIR Vs. MTMASUDA KHATUN

JUDGEMENT

(1.) This appeal arises out of proceedings under the United Provinces Encumbered Estates Act (25 of 1934), in which the appellant, Qazi Ghulam Amir, was the landlord-applicant under Section 4 of the Act. In order that the questions that arise for decision may become clear, it is necessary to mention certain names and facts. The appellant's wife is Mt. Razia Khatun, who is respondent 8 in this appeal. They had a son, Ghulam Nazir, who was a Munsif. Ghulam Nazir first married Mt. Masuda Khatun, respondent 1, and had by her three daughters, Zhakia Khatun, Rafaat Khatun and Shaukat Khatun, who are respondents 2 to 4 in this appeal. He subsequently married Mt. Rashida Khatun, who is respondent 5, and had by her two sons, Hasan Amir and Ali Amir, who are respondents 6 and 7. On 30th November 1932, respondent l, Mt. Masuda, instituted in the Court of the Subordinate Judge of Budaun Suit No. 40 of 1932 against her husband, Ghulam Nazir, for the recovery of a sum of Rs. 25,500 on account of her dower debt on the allegations that her dower had been fixed at 51,000 rupees without any specification as to the portion that was to be prompt and the portion that was to be deferred and that there was a custom in the family that in the absence of such specification, half of the amount fixed as dower was to be treated as prompt. She also claimed pendente lite and future interest This suit ended in a compromise which was reduced to writing on 9 January 1933, and the written compromise-- of which we have only a certified copy before us--was presumably filed in Court on the same date, i.e., 9 January 1933. Paragraph 1 of this document stated that Qazi Ghulam Amir, the father of Ghulam Nazir (who up to that time had been the sole defendant), was to be impleaded in the suit as defendant 2 and that Ghulam Amir had agreed to be so impleaded. Paragraphs 2 and 3 dealt with a monthly allowance which, by agreement of the parties, was fixed for the maintenance of the plaintiff and her daughters and was payable by both the defendants to the plaintiff and, upon her death, to her daughters in the manner stated in the said paragraphs. In para. 4, a certain sum was fixed for the expenses of the marriage of each of the daughters of the plaintiff which had to be paid by the defendants on the occasion of such marriage. The remaining paragraphs are important and must be quoted in extenso: 5. A decree for Rs. 17,000 on account of dower debt be passed in favour of the plaintiff against the defendants. The plaintiff has remitted the remaining amount of prompt as well as deferred dower. 6. Qazi Ghulam Amir, defendant 2, has hypothecated his property, detailed below, to secure payment of the charge of Rs. 17,000 on account of the dower debt mentioned in para. 6. Accordingly, a decree for enforcement of hypothecation lien in respect of the dower debt aforesaid be passed under Order 34, Rule 4. The personal liability of the defendants shall continue even after the auction sale of the property. 7. The decree for dower debt aforesaid shall be executable only in the following cases: (a) In case of the death of the plaintiff or of defendant 1. (b) In case the defendants fail to pay two consecutive instalments of the maintenance allowance mentioned in para. 2. (c) Even when the decree for dower debt becomes executable, the liability of the defendants for the payment of the maintenance allowance shall continue and not cease. 8. The decree for the dower debt shall not be executable in any other oases except those mentioned above. The plaintiff shall, of course, be at liberty to take out execution of the decree in respect of the maintenance allowance which remains unpaid, after waiting therefor for a period of three months. 9. The defendants shall pay to the plaintiff the entire costs of the suit within a month. The defendants shall be liable for payment of the said costs. 10. This decree shall be registered within one month at the expense of the defendants. The case be decided in accordance with this compromise and the terms thereof be embodied in the decree.

(2.) Details of the property hypothecated by Ghulam Amir followed. It may be pointed out that Clause (e) of para. 7 is really in the nature of a proviso or explanation and is not a condition for the executability of the decree. On 10th January 1933, a decree was prepared on the printed form which is used for preliminary decrees for sale in mortgage suits brought on the basis of simple mortgages. It is headed: "Preliminary decree for sale (Order 34, Rule 4 when the Court declares the amount payable)." The relevant portion of the operative part of the decree was in these words: This suit coming on this 10 day of January 1933 before ... Subordinate Judge in the presence of... pleader for the plaintiff and ... pleader for the defendant, it is ordered that the claim of the plaintiff be decreed according to the conditions laid down in the compromise, a decree be prepared in terms of the compromise and the decree be registered.

(3.) This was followed by the five paragraphs which are printed in these forms for such decrees and which are translations of the paragraphs to be found in Form No. 5-A of Appendix D to Schedule 1, Civil P. C. It is necessary to reproduce para. 1 and Clause (i) of para. 2 just as they are to be found in the decree in question: It is hereby declared that the amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to this ... day of... is the sum of Rs. ... for principal, the sum of Rs. ... for interest on the said principal, the sum of Rs. ... for costs, charges, and expenses (other than the costs of the suit) properly incurred by the plaintiff in respect of the mortgage-security, together with interest thereon, and the sum of Rs. ... for the costs of the suit awarded to the plaintiff, making in all the sum of Rs. ... 2. And it is hereby ordered and decreed as follows: (1) that the defendant do pay into Court on or before the...day of...or any later date up to which time for payment may be extended by the Court, the said sum of Rs....