SHANKER RAO MOLHARRAO Vs. KALYANJI BHAI VITHALDAS

JUDGEMENT

(1.) KAMTA Prased, predecessor, in-title of the respondent, Kalyanjibhai, obtained a preliminary decree for foreclosure on 6-8-1928 in civil Suit No. 19 of 1927 in the Court of the Additional District Judge, Raipur, for Rs. 1,06,227-10-0 against Malhar Rao, father of the appellants. The decree was slightly modified in appeal on 17-10-1929. The estate of Malhar Rao, zamindar of Amgaon, was taken under the superintendence of Court of Wards, Bhandara.

(2.) IN 1932-33 the Court of Wards sold two of the mortgagad villages and paid Rs. 41,000 towards a part satisfaction of the decree. On 3-9-1982 the parties filed a compromise petition in the trial Court in which they stated that the judgment-debtor had paid Rs. 41,000 through Court of Wards, Bhandara, and the balance of the decretal amount was agreed to be paid in 21 instalments commencing from 1-6-1933.

(3.) THE appellants contested the right of the decree-holder to get a final decree for foreclosure because of the compromise dated 3-9-1932. This contention was rejected by the trial Court and the order of the trial Court was confirmed by the High Court on 18-7-1938. In the meantime, the appellants filed a suit in the Court of the Additional District Judge, Bhandara, for a declaration that the decree for foreclosure was not binding on them and obtained an order from that Court Under Order 21, Rule 29, Civil P.C., on 24-3-1938 for stay of proceedings in the suit (civil Suit No. 19 of 1927). The decree-holder contested that order in the Court of the Additional District Judge, Raipur, which held that in spite of the stay order the Court had power to make the decree final and ordered on 29-7-1939 that the decree will be made final unless the judgment-debtors paid Rs. 10,000 in Court on or before 1-10-1939. The judgment-debtors did not pay that amount and filed an application on 7-10-1939 for review of that order, for extension of time for payment arid for instalments. The application was rejected and a final decree for foreclosure was passed on 7-10-1939.