HAJI MAULA BUX Vs. ABDUL LATIF

JUDGEMENT

(1.) In this appeal the point for decision arises on a few simple facts. It appears that Mohammad Raza and Haji Maula Bux were in partnership under the firm name of Whitfield & Co. The partnership was dissolved on 5 May 1926, and on 14 November 1927, Messrs. Bevis & Co., who were creditors of the dissolved firm, instituted through Babu Bhagwan Das a suit in the Court of the First Subordinate Judge at Cawnpore against the dissolved firm, Whitfield & Co., and its two partners, Mohammad Raza and Haji Maula Bux. The claim of the plaintiffs in that action was for a decree for Rs. 8548 with interest and costs. After the action had proceeded for some time a compromise was arrived at and a decree was passed which forms the subject of the present controversy. The material part of the decree is as follows :

(2.) The parties have compromised on the terms that the claim of the plaintiff be decreed for a lump sum of Rs. 8000 with future interest at 6 per cent. per annum with the condition that defendant 1, that is Mohammad Raza, "would pay to the plaintiff the said decretal amount in instalments of Rs. 200 per mensem. The first instalment to be due on 4 March 1929, and the other instalments would fall due on 4 of each coming month of the English Calendar. In case of default in payment of six instalments the plaintiff would be entitled to take out execution against defendant 1, and the plaintiff would realize his money from defendant 1 by taking out execution (of his decree). Defendant 2," that is, Haji Maula Bux, the present appellant, would in every way help the plaintiff in the execution. If within two years from the date of the first execution the decretal amount if not realized in any way, i. e. through attachment of property, moveable and immovable, and by the issue of warrant of arrest from defendant 1 in spite of the help of defendant 2, the plaintiff would be entitled to realize from defendant 2 that part of the decretal amount which would remain due, and the latter would be entitled to realize (that amount) from defendant 1 in any way he likes.

(3.) That decree having been pronounced, Mohammad Raza failed to pay any instalments, and when on 4 August 1929, he made default in payment of the sixth instalment the plaintiff became entitled to take out execution against him. The question is whether the steps taken by Bhagwan Das to enforce the decree against Mohammad Raza have been such as are contemplated in the decree, and such as to entitle him now to proceed against Mr. Parikh's client. On the expiry of the six months, it certainly cannot be said that the plaintiff tarried at all because by 15 August 1929, he is found already in Court taking active steps to enforce the decree against Mohammad Raza. The facts found by the learned Sessions Judge on this matter are as follows :