RADHA RAMAN SAHA Vs. MAKHOM LAL GANGULY

JUDGEMENT

(1.) The facts which give rise to this appeal are as follows: The appellant purchased certain properties belonging to the respondent on 5 December 1931 for Rs. 2,795 at an execution sale held in execution of a decree obtained by him against the respondents. The judgment- debtors made an application for setting aside the sale under 0. 21, Rule 90, Civil P.C., on 13th January 1932. On 4 June 1932 a petition was filed by the decree-holder and the judgment- debtor in the case arising out of this application stating that the case was compromised on the following terms: (1) That decree-holder will withdraw out of the money Rs. 2,995 deposited by him. (2) That sale will be set aside if the judgment-debtor pays the decretal amount in three kists, namely Rs. 500 on 30 Ashar 1339 corresponding to 14 July 1932, Rs. 400 on 12th Aswin 1339 corresponding to 20 September 1932 and the balance, namely Rs. 3,575, on 29 Poush 1339 corresponding to 13 January 1933. (3) In case of default in the payment of any kist the application for setting aside the sale would be dismissed without any evidence and the sale would stand and be confirmed. (4) If the whole decretal amount be paid according to the kists the application for setting aside the sale will be allowed without any evidence and the sale will be set aside. The executing Court passed the following order on this compromise: Both parties have filed a petition of compromise. Let the compromise be recorded. Let the case be disposed of on compromise.

(2.) On 14 July 1932, that is on the last date of the first kist, the judgment-debtor made an application to the Court for extending the time for the payment of the first kist. The Court rejected the application by the following order: The Court has no power to extend time unless a joint petition be made. The prayer is refused and the petition stands rejected.

(3.) On 29 July 1932 the Court confirmed the sale and dismissed the execution case on part satisfaction. On 13 August 1932 the judgment-debtor made an application for review of the orders rejecting his application for extension of time which was filed on 14 July 1932, and confirming the sale. While this application for review was pending the judgment-debtor with the permission of the executing Court deposited in that Court towards the satisfaction of the decree Rs. 700 on 29 September 1932, Rs. 3,073-9-3 on 14 January 1933, Rs. 500 on 24 January 1933 and Rs. 212-12-0 on 5 August 1933. On 8 July 1933, the application for review was granted and the order rejecting the judgment-debtor's application for extension of time and the order confirming the sale were set aside and the case for setting aside the sale was restored along with the petition of compromise. On 6 September 1933, the Subordinate Judge came to the conclusion that the judgment-debtor had complied substantially with the terms of compromise. He accordingly set aside the sale and dismissed the execution case as the decree was fully satisfied. An appeal was thereupon taken by the decree-holder to the lower appellate Court. The learned Additional District Judge who heard this appeal came to the following conclusions: 1. That the appeal against the order of the Subordinate Judge was competent inasmuch as the order setting aside the sale was made under Order 21, Rule 92, Civil P.C., and the order dismissing the execution case on satisfaction was an order under Section 47 of the Code. 2. that the intention of the parties at the time when the case for setting aside the sale was compromised was that the entire decretal amount should be paid within the month of Poush 1339 B.S. and that the instalments were fixed with a view to secure payments within that time and that the date for the payment of the first kist was not the essence of the contract. 3. That Rs. 700 out of the decretal amount remained unpaid at the end of Poush 1339 B. Section 4. That out of this amount Rs. 500 was not deposited in time as the judgment-debtors were misled by the mistake of the officers of the Court in calculating the balance of the decretal amount. 5. That there was deliberate default in the payment of the remaining Rs. 200 by the end of Poush and that this amount was paid seven months after. 6. That the judgment-debtor did not comply substantially with the terms of compromise.