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Ziladar Singh Vs. Brij Lal Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1937All513
AppellantZiladar Singh
RespondentBrij Lal Singh
Excerpt:
- - , has been perpetrated or the decree-holder has suffered on account of any mutual mistake, he may possibly have some remedy by way of damages, as to which i should not like to express any opinion......sale was passed on 1st november 1924 against his widow, who died later. on 1st november 1927, the decree-holder applied for execution of his decree by sale of the property against one ratan singh, alleging him to be the reversionary heir of the widow's husband, who was in possession of the entire property. while the execution proceedings were pending, ratan singh executed a usufructuary mortgage deed of the mortgaged property in favour of the decree-holder. he accordingly did not proceed to any execution sale, bat got the execution casestruck off on his own statement on 30th october 1928. subsequently three other reversioners brought a suit for possession of their half share in the property against the decree-holder and also impleaded the defendant, ratan singh. this suit was ultimately.....
Judgment:

Sulaiman, C.J.

1. This is an appeal by the decree-holder arising out of an execution proceeding. In a suit for sale on a mortgage deed executed by the last male owner the final decree for sale was passed on 1st November 1924 against his widow, who died later. On 1st November 1927, the decree-holder applied for execution of his decree by sale of the property against one Ratan Singh, alleging him to be the reversionary heir of the widow's husband, who was in possession of the entire property. While the execution proceedings were pending, Ratan Singh executed a usufructuary mortgage deed of the mortgaged property in favour of the decree-holder. He accordingly did not proceed to any execution sale, bat got the execution casestruck off on his own statement on 30th October 1928. Subsequently three other reversioners brought a suit for possession of their half share in the property against the decree-holder and also impleaded the defendant, Ratan Singh. This suit was ultimately decreed by the appellate Court on 8th November 1932. The decree-holder having been thus deprived of half the property usufructuarily mortgaged to him, applied on 4th January 1933 for the execution of his decree by sale of the mortgaged property, not only against Ratan Singh, but also against the three reversioners. His case was that a fresh right to apply for execution accrued on 8th November 1932. The application was contested on the ground that it was barred by limitation. The trial Court held that the application was governed by Article 181 and was within time. The lower appellate Court came to the conclusion that the decree had become time-barred before the other reversioners suit was decreed, and that the present application could not be considered as an application for revival of the previous proceedings. Accordingly the present application being governed by Article 182 and not by Article 181, Limitation Act, was barred by time.

2. In appeal it is contended on behalf of the decree-holder that his application was one for revival of the previous proceedings. It seems to me that there can be no question of a revival of a previous proceeding, unless that proceeding has not terminated and is still in a state of suspended animation. Where the Court did not intend to dispose of the matter finally, but either shelved it or sent it to the record room or put it off because of some injunction or stay order, intending to take it up again when the obstacles were removed, the application would still be pending and not finally disposed of; but where the Court on a statement made by the decree-holder himself has deliberately dismissed the application in full satisfaction of the decree, it cannot be suggested that the Court intended to keep alive the matter or that the application for execution, in spite of its dismissal, is still pending in that Court and can be revived at any time. It seems to me that where the Court has deliberately dismissed the application and struck off the case, intending to terminate the proceedings, the execution proceedings are at an end and are no longer pending nor can they be revived. The only remedy in case of a wrong dismissal that would be open to a decree-holder would be to apply for a review of the order, if sufficient cause were made out. Unless the order is set aside and the application is restored to its original number, it must be considered to be dead and incapable of being revived automatically.

3. The learned advocate for the appellants contends before us that this was a case analogous to a compromise decree where a compromise has been obtained by fraud, misrepresentation or mutual mistake, and can be avoided. I am not prepared to agree that this matter can be treated as-analogous to a compromise decree. It has been held by a Full Bench of this Court in Gobardhan v. Dau Dayal : AIR1932All273 that it is outside the function of an execution Court to entertain a compromise in modification of the decree. It must execute the decree as it finds it. An adjustment between the decree-holder and the judgment-debtor can however be certified and the execution case dismissed on account of such an adjustment. Indeed, it is open to a decree-holder to get his application dismissed without even a com. promise, on the mere ground that he does not wish to prosecute it any further for the present. A dismissal of an application on a statement made by the decree-holder does not, in my opinion, amount to a compromise decree, which would fall to the ground if the decree-holder were to satisfy the execution Court that the compromise out of Court had been made under a misrepresentation, coercion, fraud or mutual; mistake. It seems to me that it is quite outside the function of an execution Court to embark upon an enquiry as to the nature of the compromise arrived at between the parties outside the Court and to declare it voidable at the option of the decree-holder after investigating the question of alleged fraud, misrepresentation, coercion or mutual mistake. The appropriate course for the decree-holder may be to file a separate suit and either get the compromise, if written, set aside, or, at any rate, claim damages. It may be that if a civil Court declares that the order striking off the case had been obtained by fraud, etc., the decree-holder may possibly have a right to get the proceedings reopened, but this in my opinion cannot be done in the execution Court itself.

4. The learned advocate for the appellant has relied on a number of cases where an execution case had been struck off on account of an auction sale having taken place which was subsequently set aside. The Courts in such cases held that the order striking off the execution case in satisfaction of the decree fell to the ground and the application for execution should be revived. It is not necessary for me to consider the soundness of such decisions. It is quite sufficient to say that these cases are distinguishable, inasmuch as this is not a case where any sale had taken place under an order of the Court which was subsequently set aside, but this is a case where the decree-holder himself made the statement that his application should be struck off. I would hold that in such a case the previous application for execution is not now pending and therefore cannot be revived. If any fraud, misrepresentation, etc., has been perpetrated or the decree-holder has suffered on account of any mutual mistake, he may possibly have some remedy by way of damages, as to which I should not like to express any opinion. I would accordingly dismiss this appeal.

Niamatullah, J.

5. I agree.


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