ABID HUSAIN Vs. KUNJ BEHARI LAL

JUDGEMENT

(1.) This second appeal arises out of execution proceedings. The first Court accepted the objections raised by the appellants but the lower Appellate Court has decided in favour of the decree, holder. The facts, as far as I can ascertain them from learned Counsel and from the record appear to be these. The respondent obtained against the appellant a final mortgage decree for sale on 28 April 1934. This decree declared that the amount payable to the decree-holder by the judgment-debtor up to a certain day was Rs. 788-14-0. This included costs incurred after the passing of the preliminary decree. No future interest was allowed by the decree. The first application for execution filed by the decree, holder is the one giving rise to the proceedings which have culminated in this second appeal. It purports to bear date 15 March 1936 but was filed in Court on 17 March 1937. Either the year 1936, written on the application for execution in two places and in one place on the "fardtaliqa" which accompanied it, is a mistake, or the application was actually written out and was ready in March 1936 but, for some reason or other, was not filed until a year later in March 1937, when the period of three years was about to expire. In this application the amount recoverable is shown to be Rs. 788-14-0. The first notice which was issued to the judgment-debtor in pursuance of the order of the Court passed on 12 April 1937 was not served and on 13 May 1937, which was the date fixed for the hearing of the case, the decree-holder applied that in addition to the usual notice, a notice by registered post be also sent. The Court granted this application. On 19 May 1937 the decree, holder filed an application stating that on 17 May 1937 he had received a money order for Rs. 50 from the judgment-debtor, that this sum be deducted from the decretal amount, that the judgment-debtor was a travelling apothecary selling medicines in the bazars of various cities, that the address given on the money order receipt for Rs. 50 received on 17 May 1937 was care of Postmaster, Luck-now, and prayed that the notice be sent to that address. The Court acceded to that request and fixed 31 May for hearing. The notices were again not served and the Court ordered on 31 May 1937 that the decree-holder should take necessary steps by 19 July 1937.

(2.) On 19 July 1937 the judgment-debtor appeared and filed a petition which is headed thus : "Petition of objections in accordance with Order 21, Rule 2, Civil P.C.... In para. 1 of this application the judgment-debtor stated that there had been an agreement between the parties outside the Court by which they had agreed that the decretal amount would be paid by instalments and that ho, the judgment-debtor, had been acting upon it and had been paying sums of money to the decree-holder now and then in liquidation of the decretal amount. In the subsequent paragraphs, it was stated that the judgment-debtor had paid a total sum of Rs. 470 against the decretal amount, that the decree-holder was quite wrong in praying for the recovery of the entire decree money, and that according to the correct account, after deducting the amount paid, a sum of Rs. 318-14-0 only was due and payable to the decree-holder which the judgment-debtor was prepared to pay. It was prayed that the sum of Rs. 318-14-0 be ordered to be paid by the judgment-debtor to the decree-holder and the proceedings for the sale of the property be "postponed and cancelled." Notice of this petition of objections was given to the decree-holder and 4 September 1937 was fixed. The decree- holder appeared on that date and filed an application in reply to the objections of the judgment-debtor. In this application it was stated that the judgment-debtor immediately after the passing of the decree wanted time to pay the decretal amount and agreed to pay interest at the contractual rate till the whole amount was paid and was all along assuring the decree-holder by numerous letters to pay the full amount out of Court and requesting the decree-holder not to execute the decree and this is the reason why the execution was deferred even after the passing of the final decree for about three years.

(3.) In paragraph 4 it was stated: According to the aforesaid agreement even the full interest after the period of the decree has not been paid up and the objector after deriving advantage wants to resile back from his promise.