KISSEN GOPAL GANWARIWALA Vs. MADAN LAL

JUDGEMENT

(1.) This is an appeal by certain judgment-debtors from an order dismissing their objections in an execution proceeding. The decree under execution was passed on the Original Side of the Calcutta High Court against Kishun Gopal and Rameshwar Lal personally, and also against Sitaram and Gigla, two minors, "out of their share or interest in the assets in or to come to their hands of the joint family estate of the defendants," and it was a decree for over Rs. 19,000 besides interest and costs, the minor Sitaram alone being made liable for the difference between the costs of the suit as a defended suit and the costs as of an undefended suit. Execution was started in the Court of the Subordinate Judge of Purulia in October 1934. Two months afterwards the judgment-debtors filed an objection under Section 47, Civil P.C., which was disallowed in the following April. While that objection was pending, the judgment-debtors filed another objection in February, stating that the decree-holder had been satisfied to the extent of Rs. 12,500 and urging that he was therefore not entitled to proceed in respect of the entire amount decreed. Next month they filed another objection urging among other things, that the decree was a nullity as it was a joint decree and one of the defendants, the minor Gigla, had died before the decree was passed. While these two objections were pending, the parties arrived at a compromise on 29 April 1935 according to which the whole decree was to be treated as satisfied if the judgment-debtors paid Rs. 5,500 to the decree-holder within two months, and the decree-holder was to proceed with the execution if the judgment-debtors did not pay the agreed sum of Rs. 5,500 within the time fixed. This compromise was filed in Court on the following day and the Subordinate Judge stayed the execution proceedings till 29 June 1935. On this day, the decree-holder applied for time to proceed, and on 4 July 1935 he asked for the issue of sale proclamations (certain properties of the judgment-debtors having already been attached) alleging that the judgment-debtors had not paid anything to him and that he was therefore entitled to realize the entire decretal amount. It appears from the order- sheet of the lower Court, which is before us, that on 2 August, 1935 Rameshwar Marwari filed an objection under Section 47, which was allowed on 10 August; we understand that that was an objection regarding valuation. The sale was then fixed for 16 September 1935 on which day an objection was filed by Kishun Gopal urging among other things the old objection that on account of Gigla's death before the passing of the decree, the decree which was joint was null and void. The sale was not actually held on 16 September, but was "kept on hammer" from day to day till 21 September when the judgment-debtors filed another objection urging among other things that as the decree was against a firm, the personal properties of the judgment-debtors were not liable under it. The learned Subordinate Judge heard this objection and the objection of 16 September, together on 21 September, and finding them untenable allowed the sale to proceed.

(2.) It is contended for the appellants that under the compromise of 29 April 1935 the decree-holder was not entitled to proceed with the execution. It is not pretended that the decree-holder was paid Rs. 5,500 or any part of it within the stipulated period of two months, but it is urged that time was not of the essence of the contract, that the judgment, debtors were therefore only bound to pay Rs. 5,500 within a reasonable time, that the Court had power to relieve against forfeiture, and that the learned Subordinate Judge should have investigated an allegation made in the judgment-debtors petition of the 21 September that the decree-holder was not willing to take Rs. 5,500 though the judgment-debtors had been ready to pay it.

(3.) According to the terms of the compromise of the 29 April, the judgment- debtors had two months from that day to pay Rs. 5,500 to the decree-holder in full satisfaction of the decree. As I have already stated, the decree-holder moved the Court on the 4 July for the issue of sale proclamations on the ground that the judgment-debtors had not paid anything. It has not been claimed before us that in his objection of the 2nd August, Rameshwar Marwari said anything regarding, the readiness of the defendants to pay and the unwillingness of the decree-holder to receive Rs. 5,500. In his objection of the 16 September Kishun Gopal did urge that the decree-holder was not entitled to take out execution for the entire amount as he had contracted to take Rs. 5,500 in full satisfaction of the decree, but even then he did not say anything about the readiness of the judgment-debtors to pay and the unwillness of the decree-holder to receive that amount. The point was only mentioned for the first time in the judgment-debtors objection of the 21 September, five days after the date fixed for the sale and nearly three months after the expiry of the stipulated period of two months from 29 April. There is no reference to this point in the judgment of the lower Court, nor is it clearly stated in the grounds of appeal that the Subordinate Judge omitted to deal in his judgment with this or any other point that was actually argued before him. It seems to me from all this that the point was not really taken-- argued--below. The judgment-debtors had evidently been filing one objection after another without meaning, it, and the compromise petition, after empowering the decree-holder to proceed with the execution in case he was not paid Rs. 5,500 within the stipulated time, went on to say: In regard to the same (that is to say execution for the decretal amount of Rs. 19,700) the judgment-debtors will not be competent to raise any objection. The judgment-debtors withdraw the objections they have raised regarding valuation, etc., in the execution, and they will not be corn-patent to raise those objections in future.