VITHOBA Vs. DHANAJI

JUDGEMENT

(1.) IN execution of a decree passed in C.S. No. 31 of 1983 by the Additional District Judge, Wardha, the immovable property of the judgment-debtors consisting of village shares was attached and put to auction on 8-1-1946 and. 4-1-1946. It was purchased by different persons who are impleaded in this appeal as respondents 2, 8,4 and 5. The total amount for which the property was sold was Rs. 12,700 though the decretal amount due was Rs. 18,752-8-8.

(2.) ON 1-2-1946, as per agreement between the decree, holder, who in this case is a deity represented by Mr. N.R. Nagle, the President of the Laxminarayan Deosthan Committee, and the judgment-debtors the decree was agreed to be satisfied by payment of Rs. 10,000 in cash and execution of a promissory-note for Rs. 2000 which as a fact was executed by some of the judgment-debtors viz., Laxmansingh and Pratapsingh. On the same day Mr. Nagle, on receipt of the amount and the promissory-note, passed a receipt of full satisfaction of the decree which runs as follows: I, the undersigned, Narayan Rao Rajaram Nagle, pleader, Hinganghat, president on behalf of the plaintiff Shree Laxminarayan Dewasthan, Kapsi, execute the receipt (this receipt) as follows: In the said execution case the immovable property of the defendants was sold by auction on 3-1-1946 and 4-1-1946. The said execution having this day been privately compromised (i.e., a decision having this day been privately arrived at in respect of the said execution case), a sum of Rs. 12,000, twelve thousand rupees, has been agreed to be taken in full satisfaction of the decree. Out of the same, I have this day received Rs. 10,000, ten thousand rupees, in cash and for the balance of Rs. 2,000 two thousand rupees, the defendants have executed a promissory note. In all I have taken and received Rs. 12,000 twelve thousand rupees as above. The remaining amount has been remitted. This execution case has been fully satisfied and nothing remains due from the defendants in respect of this execution case. Hence the auction sale may be set aside.

(3.) AT a very late stage on 22-6-1946 i. e., nearly two months after the case was closed for arguments, a statement was put in on behalf of the decree-holder opposing the application to set aside sale on the ground that the promissory note for Rs. 2,000 was not executed by the judgment-debtor No. 8 and the judgment-debtors failed to pay Rs. 2,000 due on promissory note as orally undertaken by them to do.