SURPUT SINGH Vs. MAHARAJ BAHADUR SING

JUDGEMENT

(1.) This is an application by the defendant in this suit to set aside an order for execution and the consequent attachment of 6 August 1936. The papers on that application I desire to see. They will be shown to me in due course.

(2.) The application raises somewhat curious point and one which as regards this matter is of considerable importance. The facts are shortly these: In this suit a consent decree was passed in May 1936. The decretal amount was Rs. 3,14,944 and the main scheme of the consent decree was as follows: For Rs. 90,000 the decree was to be satisfied by the transfer of certain immovable properties within two months. With regard to this there is a default clause by which, I remember right, the whole amount of the decree would become liable for execution if the immovable properties were not made over within three months. Secondly, certain pledged jewellery, of which the exact whereabouts I am not clear, was to be sold within a month by the Receiver and the amount realized adjusted against the decree. Thirdly, the balance after deducting this amount was to be paid by half-yearly instalments of Rs. 7,500. Lastly, the defendant within three months was to furnish security for the balance, that is, decretal amount minus real property minus value of the jewellery, and to this again there was a default clause. In July, I think, on the basis that one of these default clauses had operated, application for execution was taken out by the decree-holder; and also at some stage or other before the date I am about to mention, a suit was filed by the defendant against the plaintiff and others in which one of the reliefs claimed was what in effect would have operated as a stay of execution. It is in these circumstances that on 23 July 1936 certain terms were proposed, put into writing and signed by the defendant. The defendant alleges that he was compelled to sign those terms by coercion, undue influence and so forth-a matter which I am not called upon to deal with on this application, and upon which I express no view in order not to prejudice any case of that kind that may be made by the defendant hereafter. That is to say I express no view save so far as it may be necessary to decide the question of law which has been urged before me.

(3.) The whole terms, the scheme of them, is as follows: (1) The decretal amount stands. (2) Rs. 40,000 is to be paid immediately, and on payment of that amount the plaintiff was to release the attachment of 11 July 1936, an attachment of certain jewellery which I presume to be distinct from the pledged jewellery. In order to obviate the difficulty of the charge in favour of a third person the immovable property, which was to have been taken in satisfaction. under the consent decree free from encumbrances at Rs. 90,000, was now to be taken subject to the encumbrances at the price of Rs. 46,000, and it was to be made over by 27 July 1936. (3) Payment of Rs. 1,10,000 by 3 August on payment of which the plaintiffs were to release the pledged jewellery. In default the jewels were to be sold, and secondly, the plaintiff would be entitled "to execute the decree for the full amount due". (4) The balance was to be payable by a sum of Rs. 65,000 on 30 July 1937 and thereafter in a manner which is not material. (5) Security was to be given for the balance and certain parties were to be added for the purposes of making that security effective. There was a default clause with regard to the provision for security.