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Gopal Das Vs. Fateh Mahammad - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All424
AppellantGopal Das
RespondentFateh Mahammad
Excerpt:
.....(limitation), section 19. - - it appears that nothing was done under this agreement, and the decree-holder has now applied to execute his decree, alleging that the judgment-debtor failed to give effect to the agreement by making over the bond to him, and this has not been denied by the judgment-debtor. all it did was to provide means by which the decree, together with another small sum due by the judgment-debtor to the decree-holder, might be satisfied, without having recourse to the sale of the bond attached, and the effect would be that, on realization, satisfaction would be certified in whole or in part to the court executing the decree. if in whole, the decree would then be written off as satisfied; if in part, execution would proceed, the decree remaining in force until..........1873, executed by kandhaia lal, kalwar, of mirdadpur, is advertized for sale, and that the decree-holder and judgment-debtor have arranged the following method of paying the decree: that the judgment-debtor shall make over the said deed to the decree-holder, in order that he shall bring a suit thereon on behalf of the judgment-debtor at his own expense against kandhaia lal, and realize the amount secured by the deed, and out of the amount realized satisfy the decree under execution, with costs and future interest, together with all costs of the suit to be brought against kandhaia lal, and together with a sum due by the judgment-debtor to the decree-holder under a note-of-hand for rs. 250 with interest: that the decree-holder shall from the balance receive a remuneration for the.....
Judgment:

Oldfield, J.

1. This is an appeal from an order on an application by the decree-holder for execution of a decree dated the 14th June 1878. It has been allowed by the Judge and the judgment-debtor has appealed. The objection that the application is barred by limitation has no force, since the Judge is right in holding that there was an acknowledgment of liability on the part of the judgment-debtor on the 11th January 1881, in writing, which saves limitation. The other objection is, that the decree is no longer fit to be executed, since it was superseded by a new contract under the instrument of the 11th January 1881. It appears that execution had been taken out, by attachment and sale of a mortgage bond infavour of the judgment-debtor by one Kandhaia Lal, and the sale was advertized to take place on the 11th January 1881. On that day the parties executed a deed on which the judgment-debtor relies. That instrument refers to the fact that the decree is under execution, and that a mortgage-deed, dated the 1st December 1873, executed by Kandhaia Lal, Kalwar, of Mirdadpur, is advertized for sale, and that the decree-holder and judgment-debtor have arranged the following method of paying the decree: that the judgment-debtor shall make over the said deed to the decree-holder, in order that he shall bring a suit thereon on behalf of the judgment-debtor at his own expense against Kandhaia Lal, and realize the amount secured by the deed, and out of the amount realized satisfy the decree under execution, with costs and future interest, together with all costs of the suit to be brought against Kandhaia Lal, and together with a sum due by the judgment-debtor to the decree-holder under a note-of-hand for Rs. 250 with interest: that the decree-holder shall from the balance receive a remuneration for the trouble of instituting the aforesaid suit at the rate of 5 per cent., and pay to the judgment-debtor what remains out of the amount realized; and it proceeds to say that any settlement between the judgment-debtor and Kandhaia Lal will be the subject of future arrangement between the judgment-debtor and the decree-holder.

2. On the same day that this deed was executed, the decree-holder filed a petition in the Court, to the effect that under the agreement an arrangement had been made for payment of the judgment-debt, by which the judgment-debtor made over to him the deed advertized for sale, in order that the petitioner should file a suit under it at his own cost against the obligor, and realize the debt due under the decree in exeoution, with interest and costs; and he prayed that the auction-sale to be held that day be postponed, and the application for execution of the decree be struck off for the present, and the previous attachment maintained; after realization of the amount entered in the deed advertized for sale, an application for execution of the decree will be duly filed. On this the order was that the case for execution of decree be struck off and the attachment be maintained. It appears that nothing was done under this agreement, and the decree-holder has now applied to execute his decree, alleging that the judgment-debtor failed to give effect to the agreement by making over the bond to him, and this has not been denied by the judgment-debtor. I am unable to hold that the arrangement entered into contemplated, or had the effect of, cancelling the decree and substituting a new contract in its place. All it did was to provide means by which the decree, together with another small sum due by the judgment-debtor to the decree-holder, might be satisfied, without having recourse to the sale of the bond attached, and the effect would be that, on realization, satisfaction would be certified in whole or in part to the Court executing the decree. If in whole, the decree would then be written off as satisfied; if in part, execution would proceed, the decree remaining in force until satisfied; and there is nothing in the deed to prevent the decree-holder executing the decree when the judgment-debtor failed to carry out the condition of the agreement. In a similar way a judgment-debtor might agree to make over the property to a decree-holder in order that he should realize the decretal amount from its proceeds, but the decree would not, in such a case, be cancelled. The deed contains nothing to the effect that the decree is superseded, and that henceforth the decree-holder's money is to be confined to the realization by suit on the bond. It is unlikely also that there should have been such an intention, considering the hazard and uncertainty of litigation.

3. The terms of the deed, in the absence of any words to the effect that the decree was to be considered as cancelled and inoperative and the remedy confined to realization by suit on the bond, are susceptible of the meaning I have put on them, and that this was the meaning intended is shown by the petition put in on the same day by the decree-holder, and the order for continuing the attachment of the bond; and it is significant that the judgment-debtor never objected to the petition or to the continuance of the attachment. In this connection it is deserving of notice that if the arrangement is to be considered to come within the meaning of an adjustment of the decree under Section 258, Civil Procedure Code, it can only be recognized by the Court when certified by the decree-holder or judgment-debtor; and in this case the only certification which was made was by the decree-holder, by his petition of the 11th January 1881, which was in respect of a temporary arrangement under which the decree remained in force. The objections, therefore, on the part of the appellant fail, and the appeal is dismissed with costs.

Mahmood, J.

4. I am of the same opinion, and I will add a few words only in order to explain my reasons. There appear to be two questions which require consideration. The first relates to limitation, as to the right of the decree-holder-respondent to obtain execution of his decree. The second is a question as to the merits, and it is whether the 'ikrar-nama' of the 11th January 1881, extinguished the decree, leaving the judgment-creditor a right to proceed under the contract then made.

5. Upon the first point the ruling of this Court in Ghansham v. Mukha I.L.R. 3 All. 320 and the ruling of Tyrrell, J. and myself in Janki Prasad v. Ghulam Ali I.L.R. 5 All. 201 which followed the Full Bench ruling in Ramhit Rai v. Satgur Rai I.L.R. 3 All. 247 settle the matter. These decisions leave no doubt that the acknowledgment in the ikrar-nama comes within Section 19 of the Limitation Act, so as to originate a fresh period of limitation in respect of the execution of the decree.

6. The second question relates to the merits, and upon this point my view is somewhat different from that of my brother Oldfield. In my opinion this agreement of the 11th January 1881, was intended by the parties as a performance of the obligation created by the decree, by substituting a fresh obligation founded upon contract. But that is not the real matter before us, and the question really is whether, whatever may have been the effect of the agreement, the decree-holder has lost his right to execution. The law, as expressed in Section 258 of the Civil Procedure Code, allows the parties to a decree to satisfy it by subsequent arrangement. But it is obvious that, in order to effect its policy, and to make the exercise of this right beneficial, the Legislature was constrained to impose some limit. If the question were now before me, whether the agreement of the 11th January 1881, did or did not extinguish the decree, and if I could go into the merits, I should perhaps answer the question in the affirmative. That deed of agreement, after reciting the conditions under which it was made, and what had been done in execution, and what money was due to the decree-holder, shows that both parties agreed to satisfy the decree by the decree-holder obtaining possession of a mortgage-deed executed in favour of the judgment-debtor by a third person. It also refers to a note-of-hand executed by the judgment-debtor in favour of the decree-holder, which must also be regarded as included in the scope of the. new contract, as substituting a new obligation in lieu of a document creating an obligation in favour of the decree-holder and providing a method of payment. The only question now is, even assuming that this deed of agreement was intended as a fresh adjustment of the decree, is that adjustment of such a character as to allow us to say in the execution department that the decree has been extinguished? At first I entertained some doubt upon this question, but having considered the deed of the 11th January 1881,1 am now of opinion that it cannot be regarded as such an adjustment of the decree as Section 258 of the Code contemplates. The section, after creating the right to certify adjustments made out of Court, proceeds to limit that right by providing that 'the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree.' What this means is that the judgment-creditor must go to the Court and say: 'My decree has been adjusted and extinguished; strike off the case.' Now, in the present case, this application of the 11th January 1881 did mention the agreement, but the certificate was imperfect, that is, insufficient to satisfy the requirements of Section 258 of the Code, because the creditor, whilst admitting the creation of a separate contract, took care to say that the decree was to be kept alive, and the attachment thereunder was to subsist. This is not a sufficient compliance with the provisions of Section 258, and therefore, without deciding what was the intention expressed by the agreement, I hold that the certification of the adjustment was inadequate, and that we cannot recognise it in executing the decree. This question leaves the parties their mutual rights under the agreement, but in connection with the execution of the decree, I concur in the order passed by my learned brother Oldfield.


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