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Raj Bahadur Vs. Sohan Pal Munna Lal and anr. - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1939All517
AppellantRaj Bahadur
RespondentSohan Pal Munna Lal and anr.
Excerpt:
- - 8 of the compromise, which became part of the decree, it was clearly and specifically provided that if the plaintiff (appellant) fails to pay defendant 1 (respondent) rs......was dismissed. thereupon, raj bahadur instituted a regular suit, no. 69 of 1932, against the decree-holder praying for a declaration that he wa3 the real owner of the property that was nought to be sold in execution of decree in suit no. 19 of 1931. ultimately this suit was compromised and the decree-holder agreed to reduce the decretal amount to rs. 8000. on behalf of raj bahadur an undertaking was given that the decretal amount will be paid by him within a certain period failing which the decree-holder will be entitled to realize the money by sale of the property under attachment in decree no. 19 of 1931. it was further stipulated that the decree-holder will be entitled to realize the decretal money by executing the decree either in suit no. 19 of 1931 or suit no. 69 of 1932. the.....
Judgment:

Mohammad Ismail, J.

1. This is a first appeal arising out of execution proceedings. The respondents Messrs. Sohan Pal Munna Lal obtained a decree for Rs. 2,11,000 odd against Sant Lal on 16th March 1932 in Suit No. 19 of 1931. In execution of decree certain properties were attached. An objection was made under Order 21, Rule 58 by the appellant Raj Bahadur. The objection was dismissed. Thereupon, Raj Bahadur instituted a regular suit, No. 69 of 1932, against the decree-holder praying for a declaration that he wa3 the real owner of the property that was nought to be sold in execution of decree in Suit No. 19 of 1931. Ultimately this suit was compromised and the decree-holder agreed to reduce the decretal amount to Rs. 8000. On behalf of Raj Bahadur an undertaking was given that the decretal amount will be paid by him within a certain period failing which the decree-holder will be entitled to realize the money by sale of the property under attachment in decree No. 19 of 1931. It was further stipulated that the decree-holder will be entitled to realize the decretal money by executing the decree either in Suit No. 19 of 1931 or Suit No. 69 of 1932. The execution application pending in Suit No. 19 of 1931 was shelved after the aforesaid compromise. The stipulated amount, however, was not paid to the decree-holder within the period agreed upon. The decree, holder, therefore, executed his decree in Suit No. 19 of 1931 for Rs. 8000 together with interest and costs. Raj Bahadur appellant was also impleaded as a judgment, debtor. Several objections were made on behalf of Raj Bahadur but they were re-polled by the Court below. The objector now comes to this Court in appeal.

2. The main question that has been stressed before us is whether the decree is executable against the appellant. It has been strenuously argued that the appellant being no party in Suit No. 19 of 1931 was not liable as a judgment-debtor and the decree obtained in the aforesaid suit could not be legally executed against him. It is then contended that the decree in Suit No. 19 of 1931 has been substituted by a subsequent decree obtained in Suit No. 69 of 1932 which alone is capable of execution. We have heard learned Counsel for the appellant in support of these contentions and we have no hesitation in holding that there is no substance in either of these contentions. In para. 8 of the compromise, which became part of the decree, it was clearly and specifically provided that if the plaintiff (appellant) fails to pay defendant 1 (respondent) Rs. 5500 within one year, then defendant 1 will be entitled to realize the principal with interest at a certain rate by executing the decree in this suit (No. 69 of 1932) or in Suit No. 19 of 1931 by sale of properties described in Schedules A and B and other properties of the plaintiff. The position of the appellant therefore became that of a surety who by virtue of the compromise on which the decree in Suit No. 69 of 1932 was founded, became liable for the payment of the decree in Suit No. 19 of 1931. It was certainly open to the decree-holder to execute the decree against the appellant to the extent to which he has rendered himself liable in the same manner as against the original defendants of Suit No. 19 of 1931. Section 145, Civil P.C., provides

Where any person has become liable as surety-

(a) for the performance of any decree or any part thereof...the decree or order may be executed against him, to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees, and such persons shall, for the purposes of appeal, be deemed a party within the meaning of Section 47.

3. Learned Counsel for the appellant has not invited our attention to any provision of law or authority against this view. In our judgment the appellant is a surety within the meaning of Section 145 of the Code and as such liable as judgment-debtor in Suit No. 19 of 1931. With regard to the second point, that the decree in the former suit no longer subsists, we have only to refer to para. 8 of the compromise deed. It was the intention of the parties to keep the decree in the former suit alive, and the decree-holder at his option could proceed in either of these two suits. In the result we affirm the decree of the Court below and dismiss this appeal with costs.


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