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Madam Naranappa Vs. P.D. Khurana - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberAppeal No. 38 of 1949-50
Judge
Reported inAIR1953Kant153; AIR1953Mys153; (1954)32MysLJ66
ActsCode of Civil Procedure (CPC), 1908 - Sections 11, 38 and 47 - Order 21, Rule 11 - Order 22 - Order 23, Rule 3; Evidence Act, 1872 - Sections 115
AppellantMadam Naranappa
RespondentP.D. Khurana
Appellant AdvocateK.P. Maddappa, Adv.
Respondent AdvocateH.V. Narayana Rao, Adv.
Excerpt:
.....the agreement, they are clearly stopped from contending that the decree passed thereon is not binding or not enforceable. even if the grievance is that the terms are beyond the scope of the suit, it will still be perfectly legal and enforceable vide -air 1932 mad 557 (d)'.assuming that the decree is not passed personally against the legal representative but only against the family assets, it is held that it is not open to the legal representative of the deceased defendant implicated under order 22, r. it is well established that an executing court is bound to execute the decree as its stands, whether right or wrong unless it be that the decree is one passed without jurisdiction see -dalip narayan singh v......having died during the pendency of the suit, the present judgment-debtor was impleaded as legal representative under order 22. civil p. c. the latter, after contesting the suit, finally entered into terms with the plaintiff, and the then parties to the suit filed a rajinama that the present defendant should pay to the plaintiff rs. 15,000/- in two instalments and that the attachment originally effected on the interest of the deceased defendant should continue till payment. the court accordingly passed a decree incorporating the terms which were appended as an annexure to the decree. the terms of the compromise are as follows: (a) 'defendant will pay to the plaintiff rs. 6000/- with interest at 9 per cent, per annum from 11-4-1946 upto this date ( 17-2-48) and interest at six per.....
Judgment:

Balakrishnaiya, J.

1. This appeal arises out of the execution proceedings in Ex. 274/47-48 before the District Judge, Bangalore. The facts of the case (as gathered from the pleadings and ``the arguments) are as under: The respondent filed a suit for the recovery of about Rs. 25,000/- against the son since deceased of the present judgment-debtor and attached before judgment the interest of the original defendant in the joint family properties. The original defendant having died during the pendency of the suit, the present judgment-debtor was impleaded as legal representative under Order 22. Civil P. C. The latter, after contesting the suit, finally entered into terms with the plaintiff, and the then parties to the suit filed a rajinama that the present defendant should pay to the plaintiff Rs. 15,000/- in two instalments and that the attachment originally effected on the interest of the deceased defendant should continue till payment. The Court accordingly passed a decree incorporating the terms which were appended as an annexure to the decree.

The terms of the compromise are as follows:

(a) 'Defendant will pay to the plaintiff Rs. 6000/- with interest at 9 per cent, per annum from 11-4-1946 upto this date ( 17-2-48) and interest at six per cent per annum from this date onward till date of realization.

(b) Defendant will also pay to the plaintiff Rupees 9000-0-0 with interest at 9 per cent per annum from 13-5-1946 upto this date (17-2-48) and interest at six per cent per annum from this date onward till date of realization.

2. Defendant will also pay the entire costs (including court-fee. Pleader fee, cost for attachment, witness batta etc publication in news papers) incurred by the plaintiff in the suit with interest thereon at six per cent per annum from the date of suit till the date of realization.

3. Two months are allowed for payment by the defendant from this date; attachment will continue till payment.

4. Defendant will bear his own costs.'

The present judgment-debtor having defaulted to pay the decretal amount in accordance with the terms of the consent decree, the execution proceedings under consideration were instituted for the recovery of the decree amount from the share of the properties attached and continued by consent under the decree.

2. The judgment-debtor objected to the execution of the decree on the ground that it is un-executable as the compromise petition does not form part of the decree, that the attachment is invalid, that the compromise decree is illegal as the deceased defendant died leaving no properties and that the properties in attachment are the self-acquisitions of the judgment-debtor. The decree-holder in reply stated that the decree is self-contained, valid and legal, that the judgment-debtor not having raised any objection to the attachment, and the attachment being continued by consent in the decree against the judgment-debtor, the decree is enforceable. Ha further stated that the decree passed by consent is a personal decree against the judgment-debtor and not against the assets of the deceased and that no question, therefore, of ascertaining the assets will arise, as the judgment-debtor consented to the decree against himself and for the continuance of the attachment effected earlier. The learned District Judge overruled the objections of the Judgment-debtor on the ground that the executing Court cannot question the validity, legality or correctness of the decree and that the Court has to execute the decree as it stands, and that since the judgment-debtor had consented to the decree, he is estopped from denying his liability. Hence the appeal by the judgment-debtor.

3. The first objection that 'the execution petition is not in keeping with the provisions of Order 21, Rule 11, Civil P. C. and that the attachment effected in the case is invalid as there was no beat of tom-tom' was neither pressed nor do we find any substance in that contention.

4. The second objection relates to the excitability of the decree; it is contended that the decree is not self-contained as the terms of the-compromise are not incorporated therein and that the compromise petition does not form part of the decree. The learned counsel for the appellant was unable to sustain this contention. In --'Malik Chand v. Jiwan Mal', AIR 1929 Lah 527 (A), a question was raised that as the decree did not contain the terms of the compromise verbatim, it was not executable; it was held therein that as the decree was passed in terms of the compromise, a copy of which was attached as schedule to the decree, the compromise should be held to have been incorporated in the decree. Bennct J. while considering whether the Court could refuse execution of a decree on the ground that it was not properly drawn up observed in -- 'Bansidhar v. Mt. Sitala', AIR 1944 Oudh 111, at p. 113 (B), that the executing Court cannot refuse to execute a decree and hold it as invalid on the ground that it is not properly drawn up. A decree drawn up with the terms of the compromise annexed to it, as schedule is executable as if the terms of compromise are incorporated into the decree. Hence the contention that the decree is inexcusable falls and cannot be upheld.

5. It was next argued by the learned counsel for the appellant that the compromise decree is illegal as there was no mention made therein that the deceased died possessed of any property, and that the compromise decree should necessarily be against the assets and not against the local representative and in that view is inexecutable against the appellant. These objections are untenable as it will be presently seen. The decree deed not be made alter enquiry about the' existence of assets or otherwise and the decree it passed against the deceased, the amount will be recoverable from the assets of the deceased admits of no doubt. That question too does not arise in this case. Upon the reading of the decree, it is found that the decree passed is by consent personally against the legal representative who is the only judgment-debtor and consequently it is executable against the judgment-debtor personally and the properties possessed by him, will become liable. Where however no objection is raised, when a compromise is presented for being recorded and no appeal is filed from the recording of the compromise or the decree passed in pursuance thereof, the legality of the compromise decree cannot be questioned at the time of the execution as observed by Rangnekar J. in -- 'Manekchand Ramchand v. Ganeshlal Goverdhan', AIR 1933 Bom 298 (C).

6. Before considering the next objection, it must be stated here, that the contention that the property attached is the self-acquisition of the legal representative is abandoned. The only argument seriously canvassed before us is that the attached property which formed the share of the deceased defendant passed, on his death, by survivorship to the legal representative and nothing-remained at the time of the decree for the recovery of the decretal amount. The decree under execution is one passed by consent of the parties, and it is not attached on fee ground of fraud or want of jurisdiction of the court that passed the same. The compromise is essentially a contract, which was adopted by the Court and solemnised into a judicial adjudication. The parties having settled the disputes amongst themselves and entered into terms embodied in the compromise, the Court has only put its imprimatur upon those terms and made the terms a rule of the Court. Assuming that the parties did by mistake or ignorance of law give by their own Judgment, a finality to their dispute, which ended in a decree, it is not open to either party to rescind from the same. The judgment not having been appealed from, became final and the parties are estopped from disputing its correctness, or executability.

'The terms of the compromise, even though they are beyond the scope of the suit, if embodied in a decree are executable. The executing Court cannot question the decree' Vide --'Govinda Nattar v. Murugesa Mudaliar : AIR1932Mad557 .

7. It is an established proposition of law that if the undivided interest in specific property of a coparcener is attached during his lifetime, for his personal debt, it can be sold after his death for the recovery of the debt but the Madras view is, that an attachment before judgment of the interest of an undivided member in the family property effected during the lifetime, will not enure to the benefit of the creditor, if the defendant dies before the decree is passed. It is the decree that makes it effectual for the purpose of execution according to that view and if the defendant dies before the decree, the attachment before judgment which is intended to protect the property from alienation by the defendant, will not affect the right of survivorship of the coparcener. Vide

- 'Ramanayya v. Rangapayya', 17 Mad 144 (E),

- 'Sanksralinga. Mudaliar v. Official Receiver of Tinnevelly', AIR 1026 Mad 72 (p) and - 'Kalianna Gondan v. Masayappa Goundan', AIR 3943 Mad 149 (G). These cases, however, are distinguishable from the circumstances of the present case as the legal representative by consent has created a lien to the extent of the original attachment on the family property; and the right of survivorship being a personal right, it was open to the judgment-debtor to have asserted it; and if the Court had overruled his objection, he would then have had a cause for complaint. The attachment before judgment quo-attachment will continue and might, ordinarily not have prevailed against the right of survivorship, but the question of attachment was, in fact, taken into consideration by the parties and agreed to between themselves and the Court in accordance therewith set its seal by accepting the terms of the compromise that 'the attachment shall continue till payment'. The parties having definitely fixed their rights and liabilities under the agreement, they are clearly stopped from contending that the decree passed thereon is not binding or not enforceable. This view is supported by a decision of the Allahabad High Court in -- 'Nizam Uddin v. Ikramul Haq'. AIR 19-17 All 143 (H), which lays down that if the Court has passed an order, which is for the benefit of the decree-holder and to the detriment of the judgment-debtor and which the Court would not have passed, if a certain point had been raised by the judgment-debtor, the hearing of such a point would be barred by the principles of res judicata. It is also possible that the right of an individual can be construed to have been waived. 'Waiver is contractual and may constitute a cause of action: It is an agreement to release or not to assert a right' as laid down in -- 'Dawsons Bank. Ltd. v. Nippon Menkwakabushihi Kaish . If the judgment-debtor waives his right and takes the liability by consenting to a personal decree against himself enforceable in case of default against the estate in which he had gained interest, in consideration of a decree for a smaller sum than what was claimed in the suit, it is not open to him to assert his right which he has given up, even though subsequently, it is found that he had done so in contravention of his rights vide -- 'Central Cooperative Bank Ltd., Barh v. Dasrath Pandey', AIR 1940 Pat 403 (J).

8. It is further contended by the appellant that the decree having been passed against the legal representative for a personal debt due by the original deceased defendant, the execution against the separate property of the legal representative could not be allowed to proceed. In support of that contention, reliance is placed on -- 'Bhujawan Prasad Singh v. Ram Narayan', 65 Ind Cas 224 (Pat) (K), which is followed in -- 'Jung Bahadur v. Gur Prasad . In the former case, the Patna High Court held that when the legal representative is sued and a decree is passed by the Court, the legal representative is evidently liable to the extent of the deceased's assets in his hands. In the latter case, it was laid down thus

'Decree passed against a legal representative is not a personal decree and consequently only the property of the deceased in the hands of the legal representative and not his separate property is to be proceeded against in execution '

In the present case, the Court has not forced the decree on the parties, but has adjudicated upon the compromise filed by them. In a voluntary compromise the party is not precluded from agreeing to take a personal liability in consideration for a small sum and allow a charge to be created on his property. Even if the grievance is that the terms are beyond the scope of the suit, it will still be perfectly legal and enforceable vide -- 'AIR 1932 Mad 557 (D)'. Assuming that the decree is not passed personally against the legal representative but only against the family assets, it is held that

'it is not open to the legal representative of the deceased defendant implicated under Order 22, R. 4 to assert his own individual or hostile title to the suit..... ...If a legal representative wants to raise any point which the deceased party could not have raised, he must get himself impleaded in his personal capacity or challenge the decree in a separate suit'

as observed by Lokur J. in - 'Dareppa v. Mallappa : AIR1947Bom307 following - 'Thavazhi Karnavan v. Sankimmi : AIR1935Mad52 and - 'Ram Ugrah Ojha v. Ganesh Singh : AIR1940All99 . Somewhat of a feeble attempt was made to maintain that the appellant has raised the objection in his individual capacity and not as legal representative in which capacity he was a party to the suit. There is no reference to show that that position was ever raised or asserted by the appellant in the Court below. If that is so, he cannot successfully oppose the application under Section 47, Civil P. C. or maintain this appeal. It is undoubted that the appellant was implied in one capacity in the suit; he cannot raise an objection in another capacity on the execution side. Tin's proposition is fairly settled by this Court in - 'Sooriah Setty v. Bhagyalakshmamma', 55 Mys H C R 1 (P) which lays down thus:

'In order to determine that a person is 'a party to the suit' within the meaning of Section 47, Civil P. C. the capacity in which he or she was 1m-pleaded and in which the claim or right was put forward must be the same. Where the impleading of a party in a suit was in one capacity and the suit against that person was dismissed and objections are raised by him or her in execution in another capacity, they are not matters falling under Section 47 of the Code and should be decided in a regular suit as that person cannot be deemed to be a party to the suit within the meaning of the section and no appeal lies against the order in execution.'

9. In -- 'Mulchand Hazarimal v. Hassomal Bachomal', AIR 1937 Sind 177 (Q), Davis J. observed that where a compromise decree subsists between the parties no contention could be raised that the declaration in the decree is otherwise than the terms indicate, which, if at all must be done in a separate suit; but so long as the decree is in force, the defendant cannot escape its provisions. In -- 'Shyam Lal v. Shyamlal : AIR1933All649 it is laid down that where a part of the compromise is decided by the Court and incorporated in the operative portion of the decree, it is binding upon the parties to the decree and its validity cannot be questioned by the executing Court. The trend of the decisions are all against the proposition put forward by the learned counsel for the appellant and it must, in conclusion, be said that the appellant has with open eyes entered into compromise with the respondent and he is precluded from going behind the said decree and plead that the decree cannot be executed against him personally or against the properties which have 'come to him by reason of survivorship.

10. The last point urged before us is the scope of the executing Court to decide matters affecting the decree. It is well established that an executing Court is bound to execute the decree as its stands, whether right or wrong unless it be that the decree is one passed without jurisdiction See -- 'Dalip Narayan Singh v. Raghunandan Prasad'. AIR 1932 Pat 134 (S) and -- 'Chunci Lal v. Sia Chaudhury', AIR 1937 Pat 618 (T). The decree cannot be questioned at the time of execution as laid down in -- 'AIR 1933 Bom 298 (C)'; nor is it open to the executing Court to go into the question whether the agreement on which the decree is passed is binding on the parties (see --'Bhagsingh Barayam Singh v. Govindaram Haradat-tarai', AIR 1943 Nag 325 (U)). Shankara Narayana Rao J. at page 442 in -- 'Pundaleekappa v. Govindappa', 15 Mys L J 435 (V) observed thus:

'In -- 'Veera Madhava Thirtha Swamigalu v. Subramaniah', 14 Mys L J 226 (W) it is laid down that a Court executing a decree cannot go behind the decree, that it has to take the decree as it stands, and that it has no power ordinarily to permit an objection being raised as to the validity, legality or correctness of the decree.'

An executing Court cannot go behind the decree. In a recent case the Supreme Court has also affirmed that

'the duty of an executing Court is to give effect to the terms of the decree. It has no power to go beyond its terms. Though it has power to interpret the decree, it cannot make a new decree for the parties under the guise of interpretation' vide -- 'Ramaswami Aiyengar v. Kailash Thevar', : [1951]2SCR292 (X).

We are, therefore, of opinion that the executing Court cannot thus permit objections to be raised about the validity of the decree sought to be executed except on ground of its being a nullity for want of jurisdiction of the Court that passed it, and the Court is bound to execute the decree as it stands. This contention of the appellant also fails. In the result the order of the learned District Judge rejecting the objections of the judgment debtor, is confirmed.

11. This appeal, therefore, fails and is dismissed, parties bearing their own costs.

12. Appeal dismissed.


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