BAPUJI Vs. TANSA

JUDGEMENT

(1.) STAPLES , A.J.C. 1. In this appeal it is contended that the compromise decree was incapable of execution as it stands. The facts have been related in the judgment of the lower appellate Court and need only be briefly repeated. A civil suit was brought in 1923, Civil Suit No. 26 of 1923, by the respondent against the appellants on a simple money bond and the matter was settled out of. Court and a decree was passed in terms of the compromise on 15th January 1924. The decree is as follows: It is ordered and decreed in terms of the compromise that defendants 1 and 2 do pay plaintiff Rs. 2,300 and Rs. 270 for costs and Rs. 642-8-0 for sawai total Ra. 3,212-8-0 by 13 instalments, viz., Rs. 250, 1st February 1924 and the annual instalments Rs. 250 from 15th December 1924 to lath December 1935, the last instalment being Rs. 212-8-0. In case of default of any instalment, compound interest Rs. 2 per cent per mensem will be charged on the amount of the defaulted instalment and in default of any three instalments the whole amount should be paid at once with compound interest Rs. 2 per cent per mensem. If the defendants fail to pay the amount with interest, the claim should be realized by sale of the house specified on the reverse and other property belonging to the defendants. The decretal amount should be the first charge on the house.

(2.) THE appellants made a default and an application for execution was filed by the respondent on 18th January 1928, An objection under Section 47, Civil P.C., was made by the appellants on 19th June but it was dismissed by the Sub-Judge on 23rd June. The grounds stated in the objection were that the house which was made the subject of the charge was outside the scope of the suit, that the decree directing the decretal amount to be a charge on the house could not be operative as it required registration under Section 17, Registration Act, and was void for want of registration, that the appellants were agriculturists and a house was necessary for their requirements and was, therefore, exempt from attachment under Section 60, Civil P.C., and finally, that the appellants having been ad-udged insolvents in the Court of the 1st Sub-Judge, Arvi, their property vested in the insolvency Court and could not be attached without the leave of the Court. The Sub-Judge, however, found that the decree did not require registration, that the charge created by the compromise decree on the property formed an integral part of the suit and could be enforced in execution and that Section 60, Civil P.C., does not apply after a charge has been created by a judgment-debtor. The application was dismissed. No reference was made, as far as I can see, in the order to the ground relating to insolvency. An appeal was prefered to the District Judge, and the grounds given in the appeal were as regards registration and insolvency and a new ground was put in that the decree as it stood, did not create a charge and that such a decree could not be executed unless it has been made a final sale decree. All these contentions were found against the appellants. In second appeal the same grounds are now put forward.

(3.) BUT that question did not really fall to be decided in the case. Apart from that also, the suit out of which that appeal arose was a suit for possession of certain lands and there had been a compromise according to which certain other lands were to be affected. It is possible, then that the compromise decree could not be executed as it stood with regard to the lands that were not originally the subject of the suit, but the present case is on a somewhat different footing. The suit was not for possession of lands but was a simple money suit. It was compromised on terms as stated above and it was also expressly agreed that in case of default the amount would be recovered by sale of the house specified in the decree and other property belonging to the defendants. I see no reason for holding, then, that this decree is incapable of execution although, admittedly, the house and the other property of the defendants were not the subject of the suit. All that the decree does is to create a charge on the house. Even had the decree been a simple money decree it is not disputed that it could be executed by attachment and sale of any property belonging to the defendants, and the fact that a charge has been created on a certain definite property, viz., the house, only puts the decree-holder in a somewhat stronger position. I have been referred by the learned Counsel for the respondent to Ramswami Naidu v. Subbaraya Tever A.I.R. 1925 Mad. 1101, which seems to be a case directly in point, and on the strength of that case I would hold that the decree as it stands is capable of execution and that it is not necessary to bring a separate suit to enforce it.