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Sital Prasad Singh and ors. Vs. Janki and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1926All563; 94Ind.Cas.210
AppellantSital Prasad Singh and ors.
RespondentJanki and anr.
Excerpt:
- - the allegation of the plaintiffs was that janki had failed to pay certain instalments, that a suit was filed by har sahai for the recovery of the instalments for 1960 to 1963 sambat, and a decree obtained therefor to be enforced by the sale of the mortgaged property, and that in the course of the execution of that decree a compromise was arrived at on the 24th august 1912, between janki and his son ram ratan on the one side and the present plaintiffs, who were the legal representatives of har sahai on the other, whereby the former agreed to pay rs......be enforced by the sale of the mortgaged property, and that in the course of the execution of that decree a compromise was arrived at on the 24th august 1912, between janki and his son ram ratan on the one side and the present plaintiffs, who were the legal representatives of har sahai on the other, whereby the former agreed to pay rs. 141 in satisfaction of the decree by certain instalments and 48 maunds of grain in satisfaction of the remaining instalments, not covered by that decree, by certain instalments payable half yearly during a period of 8 years.2. the plaintiffs seek in the present suit to enforce the latter portion of the compromise. the court of first instance decreed the claim in part. the lower appellate court dismissed it on the ground that the original mortgage merged in.....
Judgment:

Kanhaiya Lal, J.

1. The plaintiffs sued for the recovery of money due on an unregistered mortgage bond executed by Janki in favour of Har Sahai, the ancestor of the plaintiffs, on 4th January 1901. By virtue of that bond Janki had agreed to supply 99 maunds of grain by certain instalments and hypothecated certain property as security for the fulfillment of that engagement. The allegation of the plaintiffs was that Janki had failed to pay certain instalments, that a suit was filed by Har Sahai for the recovery of the instalments for 1960 to 1963 Sambat, and a decree obtained therefor to be enforced by the sale of the mortgaged property, and that in the course of the execution of that decree a compromise was arrived at on the 24th August 1912, between Janki and his son Ram Ratan on the one side and the present plaintiffs, who were the legal representatives of Har Sahai on the other, whereby the former agreed to pay Rs. 141 in satisfaction of the decree by certain instalments and 48 maunds of grain in satisfaction of the remaining instalments, not covered by that decree, by certain instalments payable half yearly during a period of 8 years.

2. The plaintiffs seek in the present suit to enforce the latter portion of the compromise. The Court of first instance decreed the claim in part. The lower appellate Court dismissed it on the ground that the original mortgage merged in the compromise and that the compromise could not be enforced by a suit.

3. A perusal of the compromise, however, shows that by virtue of the compromise the quantity of grain payable was merely adjusted and the manner in which it was to be paid was settled, but no other alteration was made in the terms of the original bond. In fact the mortgage of the property made by the original bond was maintained. In other words, the compromise merely operated as an adjustment of the account of the instalments, not covered by the previous suit, and as such it had merely the effect of determining the extent of the liability of the defendants without disturbing the terms of the original mortgage except in so far as it provided for the payment of the amount of that liability in a particular manner. The compromise dealt with the liability of the defendants under the decree and also with their liability independently of the decree. So far as the former was concerned the plaintiff's could only enforce it by a proceeding in execution. So far as the latter was concerned the matter covered by the compromise was entirely extraneous to the decree and could be enforced by a separate suit. The entire bond, so far as it was outside the scope of the previous suit, was not merged either in the decree or the compromise, and the plaintiffs are entitled to enforce it subject to such objections as may be otherwise entertainable or may be deserving of consideration. The appeal is therefore allowed and the case remanded to the lower appellate Court with a direction to reinstate it to its original number and dispose of it after determining the other points involved therein in the manner provided by law. The costs here and hit her to will abide the result. (After the remand the case again came before the High Court when the following judgment was delivered).

4. The facts of the case are given in the judgment of my learned brother Pandit Kanhaiya Lal delivered on 22nd May 1923. Under that order the appeal was remanded to the lower appellate Court under Order 41, Rule 23 with a direction to re-hear it. The learned Judge held that the compromise of 24th August 1912 could be enforced by the plaintiff so far as it was extraneous to the decree for sale, No. 114 of 1907. The learned Judge thus upheld the finding of the Munsif and set aside the finding of the lower appellate Court.

5. On remand another flaw was discovered by the lower appellate Court in the claim of the plaintiff. It held that the sulahnama not being registered did not create a charge of property on the value of over Rs. 100. This finding of the lower appellate Court also is incorrect. This point has been discussed in a Full Bench ruling of the Madras High Court reported as Thazhathitathil Poovvanayi Ayissa v. Puthan Purayil kundron Chokru AIR 1920 Mad 242. There also after a decree a petition was presented under Order 21, Rule 2, to the Court whose duty it was to execute the decree certifying as required by the rule that the decree had been adjusted and praying that the petition setting out the terms that the decree had been adjusted should be recorded. In the Madras case the order passed was 'recorded.' In the present case also a similar phrase was used.

6. 'Hasb sulahnama mutalba decree-dar qaim ho' (In accordance with the compromise the claim of the decree-holder be recorded.) In the Madras case also the compromise went beyond the decree and the decree-holder brought a suit for the recovery of the claim which was in excess of the decree. The Full Bench held that such a compromise was exempted from registration under the provisions of 8. 17 of the Registration Act which laid down that any decree or order of Court need not be registered. Long prior to the Madras ruling of 1920 a Bench of this Court had held in 1905 that such a compromise, even though it was in excess of the decree did not require registration: Raghubans Mani Singh v. Mahabir Singh (1905)28 All 78. In that case the compromise was made in a suit and went beyond the relief covered by the suit and related to land which was not covered by that suit. The Madras High Court pointed out that the decision of the Privy Council in Hemanta Kumari Debi v. Midnapdre Zamindary Company AIR 1919 PC 79 had settled the differences, of opinion which had been referred to in the order of reference.

7. This appeal succeeds. I refuse to send it back to the lower appellate Court. The litigation has been going on for years and almost continuously since 1907. The plaint in the suit to which this appeal refers was filed as far back as 3rd January 1921. It would be an abuse of the process of law not to put a stop finally to the litigation. I have read the grounds of appeal to the lower appellate Court so far as they are not covered by the judgment of my learned brother. There is no force in them. The learned Munsif has given very satisfactory reasons for his finding that the bond sued upon had been fully paid off. I have also read the objections by way of appeal and hold that there is no sub-stance in them.

8. In the result I set aside the decree of the lower appellate Court, restore the decree of the Munsif dated the 29th April 1921 and direct that the parties shall bear their own intervening costs.


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