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Vishnu Moreshwar Dabholkar Vs. Sadashiv Shivram Nisale - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number First Appeal No. 205 of 1924
Judge
Reported inAIR1925Bom509; (1925)27BOMLR943
AppellantVishnu Moreshwar Dabholkar
RespondentSadashiv Shivram Nisale
DispositionAppeal dismissed
Excerpt:
decree - mortgage decree-instalments-preliminary decree-final decree- charge created by decree-property charged may be told in execution.;a decree based on a compromise directed payment of the decretal amount in instalments and provided that in default of payment of any two instalments not only the mortgaged property (which was insufficient), but alto; other lands of the judgment debtors (which were ' given as security ' by the decree) could be sold. default having occurred, the decree-holder applied to execute the whole decree, without taking any steps to take out a final decree, and sought to attach not only the mortgaged property but also the other properties on which a charge had been declared by the decree :-;(1) that the decree under execution was a decree for a specific sum..........to respondent no. 1.coyajee, j.9. i agree. this appeal arises out of proceedings to carry out the decree passed in suit no 333 of 1920, it was a suit brought to enforce a mortgage, and praying inter alia, for the sale of the mortgaged properties. the court passed a decree with the consent of parties and in accordance with an agreement whereby the suit was wholly adjusted the decree provided that the decretal sum should be paid by the judgment-debtors (now appellants) by instalments of rs. 5,000 a year; but in default of payment of two instalments the decree-holder was entitled to recover the whole amount then remaining due by sale of the properties referred to in clauses 7 and 8, this decree is not in the ordinary form of a mortgage decree (order 'xxxiv, rule 4); and it is competent to.....
Judgment:

Norman Macleod, Kt., C.J.

1. In Suit No. 333 of 1920 in the Court of the First Class Subordinate Judge at Ahmednagar, a compromise decree was passed in which it was directed that a sum of over Rs. 32,000 with interest should be paid by annual instalments of Rs. 5,000 a year. Clause 7 was as follows :--

In default of payment of any two instalments the plaintiff should treat that the concession regarding the instalments that were allowed was not availed of and should forthwith recover the whole amount due to him at that time including principal and interest by sale of the mortgaged property in suit and of the below-mentioned property given as security and mentioned in clause 8 through Court.

2. Clause 8 was as follows:-

As the value of the property given as security and mentioned in the mortgage deed is not sufficient to pay off the whole amount due by the defendants, the same together with the immoveable property of the defendants situate at Mauje Khedle Parmanand in the taluka of Nerase have been given as security for the whole of this amount.

3. As the defendants did not pay the instalments as directed by the decree, the plaintiff took out a darkhast, and as is not uncommon in such cases, the defendants raised all sorts of technical objections to their being compelled to pay what they had agreed to be ordered to pay under the compromise decree. They contended that the decree could not be executed unless a final decree was passed. They also contended that the property referred to in clause 8 of the decree could not be sold at all in execution of the decree. We see no reason why we should consider that the decree was a preliminary decree which could not be executed unless a final decree was passed. It was a decree for a specific sum payable by instalments with a direction that if two instalments fell into arrears, the plaintiff could sell the mortgaged property. If it had been intended that the decree should be considered as a preliminary decree, then a direction would have been given that on default the plaintiff should be at liberty to apply for final decree. But in the absence of such a direction, there would be nothing to prevent the plaintiff, when the defendants fell into arrears, making an application to execute the decree by sale of the mortgaged property under clause 7 of the decree.

4. It was then contended that because the property referred to in clause 8 was not the subject-matter of the suit as originally filed, the plaintiff could not ask the Court to sell it in execution, but must file another suit for a declaration presumably that that property was charged with payment of the decretal amount. The Privy Council decision in Hemanta Kumari Deli v. Midnapur Zamindari Company was relied upon. In that case there was a compromise, one of the terms of which was that plaintiff agreed that if she succeeded in another suit which she had brought to recover certain land, other than that to which the compromise suit related, she would grant to the defendants a lease of that land upon specified terms. A suit was brought for the specific performance of the agreement. The chief objection to the claim was that the agreement required registration. The case wan decided under Section 375 of the Code of 1882 The appellants rely upon a passage in the judgment at p. 246. Their lordships said :-

The terms of this section need careful scrutiny. In the first place, it is plain that the agreement or compromise, in whole and not in part, is to be recorded, and the decree is then la confine its operation to so much of the subject matter of the suit us is dealt with by the agreement. Their Lordships are not aware of the exact system by which documents are recorded in the Courts in India, but a perfectly proper and effectual method of carrying out the terms of this section would be for the decree to recite the whole of the agreement and then to conclude with an order relative to that part that was the subject of the suit, or it could introduce the agreement in a schedule to the decree j but in either case, although the operative part of the decree would be properly confined to the actual subject-matter of the then existing litigation, the decree taken as a whole would include the agreement. This in fact is what the decree did in the present case It may be that as a decree it was incapable of being executed outside the lands of the suit, hut that does not prevent it being received in evidence of its contents.

6. The question whether such an agreement with regard to property relates to the suit was considered in Joti Kuruvetappa v. Izari Sirusappa I.L.R(1907) Mad. 478 where it was held that 'In a suit for money, where the plaint prays for a simple money decree, an agreement, by which the parties agree that the amount decreed according to the compromise .should be a charge on certain properties, lawful' and 'relates to the suit' so as to be embodied in the decree.'

7. That case has been followed in various later decisions in Madras which are cited in Mulla's Civil Procedure Code at p. 687. We think, then, that the contention that the Court was not entitled to direct the sale of the property mentioned in clause 8 of the compromise decree cannot be sustained. There can be no doubt, when the compromise decree was passed, the defendants agreed that this property should be charged in the decree with payment of the decretal amount, and it is not very creditable to them that they should now seek to prevent plaintiff's realising his security by suggesting that what was intended when the decree was passed should not be given effect to now, but that the plaintiff ought to be put to filing yet another suit.

8. We dismiss the appeal with costs payable to respondent No. 1.

Coyajee, J.

9. I agree. This appeal arises out of proceedings to carry out the decree passed in Suit No 333 of 1920, It was a suit brought to enforce a mortgage, and praying inter alia, for the sale of the mortgaged properties. The Court passed a decree with the consent of parties and in accordance with an agreement whereby the suit was wholly adjusted The decree provided that the decretal sum should be paid by the judgment-debtors (now appellants) by instalments of Rs. 5,000 a year; but in default of payment of two instalments the decree-holder was entitled to recover the whole amount then remaining due by sale of the properties referred to in clauses 7 and 8, This decree is not in the ordinary form of a mortgage decree (Order 'XXXIV, Rule 4); and it is competent to the decree-holder to bring the said properties to sale in execution of the decree, without applying that it may be made final

10. It was then contended, on behalf of the judgment-debtors, that inasmuch as the decree-holder had claimed no relief in his plaint as regards the properties referred to in clause 8 of the compromise-decree, those properties could not be sold in execution of that decree. The scheme of the agreement arrived at between the parties was this. The creditor agreed to allow the debtor time for payment of the sum due by instalments-But as the value of the property originally mortgaged was insufficient to pay off the whole debt, the debtor on his part agreed that the additional properties referred to in the eighth clause should be charged with payment of the decretal debt. The charge thus created was clearly a necessary part of the agreement whereby the suit was adjusted. The decree now sought to be executed was passed in accordance with that agreement. The question is-whether that agreement 'relates to the suit,' as required by Order XXIII, Rule 3. There is nothing in the language of that enactment to restrict its operation to the relief claimed in the plaint. In Joti Kuruvetappa v. Izari Sirusappa (1907) I.L.R. 30 Mad. 478 the learned Judges say (p. 480):-

We see nothing in this language to preclude the Court from embodying in the decree the charge which the parties agreed to as security for the debt. The agreement was ' lawful,' and it ' relates to the suit,' that is, to the matter of the claim in the case In the claim as made in the plaint there was, it is true, no prayer to have the amount charged on the property, but there is nothing in principle or in the language of the section...to restrict the relief to be granted in accordance with a compromise to what is prayed for in the plaint or leas...the language used is wide and general, and it is obvious that it would be highly inconvenient if the parties should not be allowed to settle their disputes on such lawful terms an they might agree 10 without being restricted to such relief as one only of the parties had chosen to claim in the plaint.

11. In that case the learned Judges were considering the language of Section 375 of the Code of 1882; but the omission of the last thirty words in the corresponding provision in the Code of 1908 does not affect the soundness of their view, with which I agree. On the facts of this case I am of the opinion that the decree now sought to be enforced was passed in accordance with the agreement of the parties which wholly adjusted the suit, and that the agreement did 'relate to the suit,'

12. For these reasons this appeal fails.


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