ABDUL RASHID KHAN RAHIM KHAN Vs. SINGHAI BANSILAL

JUDGEMENT

(1.) THIS appeal raises a curious point which is the obverse to that raised in Shridhar Krishnarao v. Narayan Namaji (1939) 26 AIR Nag 227. In both the cases there was a debtor who applied to a Debt Conciliation Board for the settlement of his debts. In both cases a settlement was effected by an agreement duly registered in accordance with the provisions of the Act. In both cases the settlement involved the promise to transfer property in settlement of debt. In both cases the debtor avoided the execution of a sale deed. In the case reported in Shridhar Krishnarao v. Narayan Namaji (1939) 26 AIR Nag 227 the creditor treated the registered agreement as a decree and pro-ceeded to execute it. The point was taken by the debtor that it was not a decree and could not be executed. In the present case the creditor seeks specific performance of the agreement. The debtor urges that specific performance is not the correct relief but that the creditor should have proceeded to execute the fictional decree. In the case reported in Shridhar Krishnarao v. Narayan Namaji (1939) 26 AIR Nag 227 this Bench came to the conclusion that under the provisions of the Central Provinces Debt Conciliation Act such an agreement as the one in question when registered must be deemed to be a decree and should be executed as such and an action for specific performance is not necessary; and in that we concurred in the view expressed by another Judge of this High Court in Seth Shankardas v. Seth Nandlal (1889) NLJ 85. We arrived at that conclusion with considerable hesitancy owing to the very confused and conflicting provisions of the Debt Conciliation Act.

(2.) WHERE the agreement arrived at before a Debt Conciliation Board in settlement of a debt provides for the payment of a sum of money in settlement there is no doubt but that the agreement when registered can be executed as if it were a decree. The great doubt arises, owing to the wording of the Act, where the settlement provides for land in lieu of the debt. It might well have been thought that such an agreement is not one contemplated by the Act, or if so contemplated, does not amount to a decree but is an ordinary agreement to transfer to enforce which a suit for specific performance is necessary. It would be nothing less than a scandal if the plaintiff who launches such a suit could be defeated by the technical defence that although there is an agreement registered, although it should be specifically enforced, yet no suit lies because there is an easier way and that easier way is not only available to him but must be taken by him, the easier way being the execution of the registered agreement as if it were a decree for specific performance.

(3.) AS to the question of limitation we draw attention to Charan Das v. Amir Khan (1921) 8 AIR PC 50 at p. 116 and the observations of the Judicial Committee in that place. There their Lordships permitted an amendment after time. It is one of the best established rules that one should not permit an amendment which will let in a cause of action after the period of limitation for bringing a suit, based on that cause of action, has expired. Their Lordships however pointed out that even that must be done in some circumstances or one is simply to deny a litigant justice. There their Lordships did it because the defect in the pleadings was due to what their Lordships described as clumsy blundering. The plaintiffs were really seeking the relief which the amendment enabled them properly to ask for. Here we do not stigmatize the advice given to the plaintiffs as clumsy blundering because we think it was quite impossible for anybody to be quite certain what the provisions of some Sections of the Debt Conciliation Act mean. It was a matter of doubt what the position is where a settlement such as the present is arrived at. The difference of opinion has been acute as to whether the Debt Conciliation Board could bring about any such settlement or, if it did, whether the agreement was a decree and, if it was, whether it was such a decree of Court as could be enforced by execution or whether the settlement should be treated as a binding agreement between A and B to enforce which a suit for specific performance is necessary. It is abundantly plain that what the plaintiffs want, and what justice says they should have, is the performance of the agreement entered into. It is quite clear that the remedy for such a litigant under the ordinary law would be to proceed by a suit for specific performance. A special law has been passed which, as we have held in the above cited case, makes it possible for the litigant to pursue a shorter remedy. This special legislation enables him to treat that registered agreement as a decree and to proceed in execution of that fictional decree.