GANESHLAL Vs. SARDARMAL

JUDGEMENT

(1.) SUBHEDAR , A.J.C. 1. In Civil Suit No. 9 of 1922 on the file of the Additional District Judge, Raipur, a final decree for foreclosure was passed against the defendants-appellants on 19th March 1927. The respondent on 3rd August 1928 filed an application for execution of the said decree asking for delivery of possession of the foreclosed properties and a warrant for possession was issued, but returned unexecuted because it was reported that the houses were locked. On 22nd September 1928 a fresh warrant was issued with directions to break open the locks and deliver possession of the houses to the respondent decree-holder.

(2.) ON 26th September 1928 the appelants judgment-debtors presented an application to the lower Court contending that on account of a certain agreement arrived at between the parties before the preliminary decree was passed the decree could not be executed otherwise than in terms of the alleged agreement which are set out in para. 2 of the application in these words: That these Judgment-debtors contend that prior to the passing of the decree there was an agreement between the parties that in case the subsequent-mortgagee Madhoram Parasram would fail to redeem and pay up the decrial amount this decree-holder would not execute the decree against these judgment-dsbtors and accept the decretal money in three annual instalments ten months after the decree absolute. That the consideration for this agreement was that these judgment-debtors would not dispute the decree-holders' claim under the mortgage which part of the agreement the judgment-debtors have performed.

(3.) RELIANCE was placed by the learned pleader for the appellants on the case of Venkatasubba Mvdali v. Manickammal A.I.R. 1926 Mad. 582, which, following an earlier Pull Bench case of the same Court, lays down that a pre-deoree arrangement, by which a decree was not to be executed, can be pleaded in bar of the execution of the decree. On the other hand, in the case of Hukamchand v. Radhakisan [1915] 11 N.L.R. 110 this Court following the law propounded by the Calcutta High Court in the cases of Benode Lal v. Brojendra [1902] 29 Cal. 810 and Hassan Ali v. Gauzi Ali Mir [1904] 31 Cal. 179, has held exactly the opposite view after expressly dissenting from that taken by the Bombay High Court in the case of LaIdas v. Kishordas [1898] 22 Bom. 463.