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Sheo Sahai Vs. Kashi Prasad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1897)ILR19All186
AppellantSheo Sahai
RespondentKashi Prasad
Excerpt:
act no. iv of 1882 (transfer of property act), sections 88, 89, 94 - execution of decree--decree for sale--agreement for payment by instalments with enhanced interest--civil procedure code, section 257a. - - we doubt if that view of the law would be considered a good one at the present day. excess of the sum due or to accrue due under the decree, shall be void unless it is made with the like sanction. provided that the court may, upon good cause shown, and upon such terms, if any, power to enlarge time as it thinks fit, from time to time postpone the day fixed under section ninety-two for payment to the defendant......regards the-property affected by the order, both be extinguished. provided that the court may, upon good cause shown, and upon such terms, if any, power to enlarge time as it thinks fit, from time to time postpone the day fixed under section ninety-two for payment to the defendant.
Judgment:

John Edge, Kt., C.J. and Blair, J.

1. The respondent on the 7th of May 1891, obtained a decree for sale under Section 88 of the Transfer of Property Act, 1882, against the appellant here. Subsequently to the making of that decree, and after expiration of the time for payment limited by the decree, the respondent obtained an order under Section 89 of that Act. Later still, after the making of that order, the parties agreed that the appellant here might pay by instalments, part of the consideration for that agreement being an increase by about Rs. 2,000 of the decretal debt and certain provisions as to the payment of additional interest. The Court sanctioned the agreement under Section 257-A1 of the Code of Civil Procedure. The respondent now seeks to have execution of the decree and the agreement, or rather to have execution for the amounts mentioned in the agreement and for the additional interest mentioned in the agreement. The Court below granted the application, and from that order this appeal has been brought.

2. Mr. Roshan Lal, for the respondent, has contended that an agreement of this kind which has been sanctioned by the Court can be enforced by execution as if it were a decree, and in fact that it varies the decree. He has relied on Ameer-un-nissa Khatoon v. Meer Mahomed Hossein 2 C.L.R. 143 and on Sita Ram v. Dasrath Das I.L.R. 5 All. 492. The case in Calcutta decided nothing of the kind; in fact it left the question open to be, decided subsequently whether the decree-holder could enforce his decree for anything not specifically decreed. The Full Bench case in this Court certainly supports to some extent Mr. Roshan Lal's argument. It decided that, where there was a sulahnamah relating to a decree which had been sanctioned under Section 257-A of the Code of Civil Procedure, the decree might be executed in accordance with its provisions. In that case the sulahnamah imposed an additional burden on the judgment-debtor not imposed by the decree. We doubt if that view of the law would be considered a good one at the present day. Fortunately, it does not bind us in this case, for, although the decree in that case was one in enforcement of a hypothecation by sale, the decree was made in 1881, and consequently was not a decree for sale under the Transfer of Property Act, 1882.

3. Section 210 of the Code of Civil Procedure enables a Court after passing a decree for the payment of money, on the application of the judgment-debtor and with the consent of the decree-holder, to order the amount decreed to be paid by instalments on such terms, as to the payment of interest, attachment of the property or otherwise, as the Court thinks fit. Such an application must be made within six months of the date of the decree. By the same section it is enacted that, 'save as is provided by that section and Section 206, no decree shall be altered at the request of the parties.' That section does not apply to a decree for sale, which is not a decree for money, and which can only be made under the Transfer of Property Act, 1882, since that Act came into force. It is obvious that, where a decree for sale is made under Section 88 of the Transfer of Property Act, no subsequent agreement between the parties can increase the amount for which the property is to be sold in case default of payment is made. Under Section 88 the decree must direct that the proceeds of the sale, after defraying there out the expenses of the sale, shall be paid into Court 'and applied in payment of what is so found due to the plaintiff, and that the balance, if any, be paid to the defendant or other persons entitled to receive the same.' The words 'what is found due to the plaintiff' refer to what is found due in the account or by the declaration of the Court mentioned in Section 86. The order under Section 89 can only be an order that the property, or a sufficient part thereof, be sold and that the proceeds of the sale be dealt with as is mentioned in Section 88. There is no provision in Section 88 or Section 89 such as those contained in the proviso to Section 87, which is the section relating to suits for foreclosure, or in Section 931, which is the section relating to suits for redemption. We can only come to the conclusion that a decree for sale under Section 88 of the Transfer of Property Act can only be executed as provided by that Act, that is, for the amount decreed or found in account to be due, and that the order for sale cannot, except with regard to any additional costs which may be provided for by Section 94, extend in any way the liability of the judgment-debtor or his property under the decree. All that this decree-holder is entitled to under the order under Section 89 is to have his decree executed for the amount decreed and the expenses of the sale and for any additional costs which may be incurred under Section 94. He cannot have execution of the agreement by which time was given. As the application was one for execution of the agreement, we allow this appeal and dismiss the application with costs.

1. Section 257-A: Every agreement to give time for the satisfaction of a judgment-debt

shall be void unless it is made for consideration and with the

Agreement to give time sanction of the Court which passed the decree, and suoh Court

to juagment-debtor. deems the oonsiderat{on t0 be under the circumstances

reasonable.

Every agreement for the satisfaction of a judgment-debt which

Agreement for satisfiac- provides for the payment, directly or indirectly, of any sum in

tion of judgment-debt. excess of the sum due or to accrue due under the decree, shall

be void unless it is made with the like sanction.

Any sum paid in contravention of the provisions of this seotion shall be applied to the

satisfaction of the judgment-debt, and the surplus, if any, shall be recoverable by the

judgment-debtor.

2. Section 93: If payment, is made of such amount and of such subsequent costs as are

In case of redemption, mentioned in section ninety four, the plaintiff shall, if

possession necessary, be put into possession of the mortgaged pro-

petty.

If such payment is not so made, the defendant may (unless the mortgage is simple or

usufructuary) apply to the Court for an order that the plaintiff

In default, foreclosure and all persons claiming through or under him be debarred

or sale. absolutely of all right to redeem,, or (unless the mortgage is

by conditional sale) for an order that the mortgaged property

be sold.

If he applies for the former order, the Court shall pass an order that the plaintiff and

all persons claiming through or under him be absolutely debarred of all right to redeem the

mortgaged property, and may, if necessary, deliver possession of the property to the

defendant.

If he applies for the latter order, the Court shall pass an order that euob property-or a

sufficient part thereof, be sold, and that the proceeds of the sale (after defraying thereout

the expenses of the sale) be paid into Court and applied in payment of what is found due to

the defendant, and that the balance be paid to the plaintiff or other persons-entitled to

receive the same.

On the passing of any order under this section the plaintiff's right to redeem and the

security shall, as regards the-property affected by the order, both be extinguished.

Provided that the Court may, upon good cause shown, and upon such terms, if any,

Power to enlarge time as it thinks fit, from time to time postpone the day fixed under

section ninety-two for payment to the defendant.


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