SITAL PRASAD SINGH Vs. JANKI

JUDGEMENT

(1.) The plaintiffs sued for the recovery of money due on an unregistered mortgage bond executed by Janki in favour of Har Sahai, the ancestor of the plaintiffs, on 4 January 1901. By virtue of that bond Janki had agreed to supply 99 maunds of grain by certain instalments and hypothecated certain property as security for the fulfillment of that engagement. The allegation of the plaintiffs was that Janki had failed to pay certain instalments, that a suit was filed by Har Sahai for the recovery of the instalments for 1960 to 1963 Sambat, and a decree obtained therefor to be enforced by the sale of the mortgaged property, and that in the course of the execution of that decree a compromise was arrived at on the 24 August 1912, between Janki and his son Ram Ratan on the one side and the present plaintiffs, who were the legal representatives of Har Sahai on the other, whereby the former agreed to pay Rs. 141 in satisfaction of the decree by certain instalments and 48 maunds of grain in satisfaction of the remaining instalments, not covered by that decree, by certain instalments payable half yearly during a period of 8 years.

(2.) The plaintiffs seek in the present suit to enforce the latter portion of the compromise. The Court of first instance decreed the claim in part. The lower appellate Court dismissed it on the ground that the original mortgage merged in the compromise and that the compromise could not be enforced by a suit.

(3.) A perusal of the compromise, however, shows that by virtue of the compromise the quantity of grain payable was merely adjusted and the manner in which it was to be paid was settled, but no other alteration was made in the terms of the original bond. In fact the mortgage of the property made by the original bond was maintained. In other words, the compromise merely operated as an adjustment of the account of the instalments, not covered by the previous suit, and as such it had merely the effect of determining the extent of the liability of the defendants without disturbing the terms of the original mortgage except in so far as it provided for the payment of the amount of that liability in a particular manner. The compromise dealt with the liability of the defendants under the decree and also with their liability independently of the decree. So far as the former was concerned the plaintiff's could only enforce it by a proceeding in execution. So far as the latter was concerned the matter covered by the compromise was entirely extraneous to the decree and could be enforced by a separate suit. The entire bond, so far as it was outside the scope of the previous suit, was not merged either in the decree or the compromise, and the plaintiffs are entitled to enforce it subject to such objections as may be otherwise entertainable or may be deserving of consideration. The appeal is therefore allowed and the case remanded to the lower appellate Court with a direction to reinstate it to its original number and dispose of it after determining the other points involved therein in the manner provided by law. The costs here and hit her to will abide the result. (After the remand the case again came before the High Court when the following judgment was delivered).