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Shivappa Dandappa Manvi Vs. Gurpadappa Doddappa Hasibi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 162 of 1931
Judge
Reported inAIR1933Bom100; (1933)35BOMLR91
AppellantShivappa Dandappa Manvi
RespondentGurpadappa Doddappa Hasibi
Excerpt:
civil procedure code (act v of 1908), section 47, order xxi, rule 2-deeree-adjustment-enforcement of terms of adjustment in execution proceedings.;where a decree for payment of money is adjusted between the parties, the terms of the adjustment can be enforced by taking proceedings in execution of the decree.;sita ram v. dasrath das (1883) i.l.r. 5 all. 492, f.b. and muhammad sulaiman v. jhukki lal (1888) i.l.r. 11 all. 228, followed. - .....portion in circumstances similar to those in the present case.2. we, therefore, reverse the lower court's order, and remand the darkhast for disposal according to law. costs costs in the darkhast.nanavati, j.3. i agree.
Judgment:

Murphy, J.

1. This is a first appeal against an order in execution. What happened was that, in the first instance, a decree for Rs. 70,000 odd was made against the judgment-debtor on December 1, 1924. Subsequently, in an application for execution, the parties came to an arrangement or adjustment, by which the judgment-creditor agreed to receive Rs. 50,000 in lieu of Rs. 70,000 decreed him. Of this sum of Rs. 50,000, Rs. 40,000 were to be paid in cash on October 1, 1927, and the balance of Rs, 10,000 was payable in two equal instalments, the first being due on August 31, 1928, and the second on the corresponding date in the following year. It appears that the instalments were not paid, or fully paid, in accordance with the agreement, and the decree-holder consequently brought a second application for execution to recover the balance due under the agreement. The learned First Class Subordinate Judge's view, however, was that the decree in the suit had been adjusted by the agreement entered into between the parties in Miscellaneous Application No. 1 of 1928. 'So this darkhast on the decree is not maintainable and is therefore rejected with costs. No entry has been made in the suit register about the adjustment. It should be now made.' His view apparently was, and it is supported by Mr. Jahagirdar for the judgment-debtor, that an adjustment such as the one that took place in this case operates as a complete satisfaction of the decree, and consequently, that when its terms are not observed, further proceedings cannot be taken on it in execution, but must be presumably by way of a regular suit. On the other hand, Order XXI, Rule 2, provides not only for the complete adjustment of a decree, but also for its adjustment in part, the language used being, 'Where any money payable under a decree of any kind is paid out of Court or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder the decree-holder shall certify, etc.' The real question before us is, therefore, whether this arrangement has operated as a partial satisfaction of the decree or not? We think that in fact it has. The original sum due was Rs. 70,000, which the arrangement reduced to Rs. 50,000, and as to Rs. 40,000 of the Rs. 50,000 there was an actual satisfaction, but the terms as to satisfaction of the remaining amount of Rs. 10,000, which was secured by a charge on certain specified property, have not been furnished by the judgment-debtor. Mr. Murdeshwar for the appellant relies on two cases of the Allahabad High Court. The first of these is Muhammad Sulaiman v. Jhukki Lal I.L.R. (1888) All. 228 Mr. Jahagirdar has tried to distinguish this case on the ground that the corresponding sections there spoken of show that it was a compromise under Order XXIII, rule 3, and not under Order XXI, rule 2. The second case is a full bench ruling of the same High Court, Sita Ram v. Dasrath Das I.L.R. (1883) All. 492 and although it turns somewhat on the then Section 257A, which is not re-enacted in the present Code, the principle, we think, is not affected, and it was there held that where there has been partial adjustment, the decree can be executed as to the remaining portion in circumstances similar to those in the present case.

2. We, therefore, reverse the lower Court's order, and remand the darkhast for disposal according to law. Costs costs in the darkhast.

Nanavati, J.

3. I agree.


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