Skip to content


Chhatra Pati Pertab Bahadur Sahi Vs. Hari Ram Marwari - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1940All423
AppellantChhatra Pati Pertab Bahadur Sahi
RespondentHari Ram Marwari
Excerpt:
- - 3. this decision cannot now be regarded as good law in view of a recent decision of the privy council which is against this case......: air1932all273 , that in numerous cases a compromise between the decree-holder and the judgment-debtor entered into in the course of execution proceedings, which was duly recorded, has been enforced, and they are not of opinion that the practice, which is both widespread and inveterate, is contrary to the code. they are of opinion that in the present case the compromise can and should be enforced in these execution proceedings.4. there can therefore be no doubt that the compromise which was entered into between the parties was enforceable in execution proceedings. the period of twelve years will, accordingly, be computed from the date of the default, i.e., from 31st may 1933. the application therefore is within time and is not barred by section 48, civil p.c. in the result the appeal.....
Judgment:

Ganga Nath, J.

1. This is a judgment-debtor's appeal and arises out of execution proceedings. The respondent obtained a decree against the judgment-debtor on 17th May 1926. On 21st April 1928 a compromise was entered into between the parties in the execution proceedings by which the decretal money was to be paid in eight yearly instalments, each instalment payable on 31st May. The judgment-debtor paid the first four instalments, but made a default in the payment of the fifth instalment, which fell due on 31st May 1933. The present application for execution was made by the decree-holder on 5th July 1938. An objection was taken by the appellant that the execution was barred by Section 48, Civil P.C. The execution Court has repelled the objection. Section 48(1) lays down:

Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of 12 years from-

* * * *(b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.

2. Under the terms of the compromise entered into between the parties referred to above, the decretal money was payable on certain dates fixed in the compromise. The case therefore falls under Clause (b) of Section 48(1). Reliance was placed by learned Counsel on Gobardhan Das v. Dau Dayal : AIR1932All273 . There it was observed:

An execution Court has no power to alter or vary the decree under execution and to substitute a new decree for it. A mere agreement or consent of the parties cannot confer such a jurisdiction on the execution Court, or supersede the rule of limitation.

An order under Order 20, Rule 11, Civil P.C., can be passed by the original Court only, i.e. the Court which passed the decree.

3. This decision cannot now be regarded as good law in view of a recent decision of the Privy Council which is against this case. In Oudh Commercial Bank, Ltd., Fyzabad v. Bind Basni Kuer their Lordships of the Privy Council observed:

Their Lordships are in agreement with the statement in Gobardhan Das v. Dau Dayal : AIR1932All273 , that in numerous cases a compromise between the decree-holder and the judgment-debtor entered into in the course of execution proceedings, which was duly recorded, has been enforced, and they are not of opinion that the practice, which is both widespread and inveterate, is contrary to the Code. They are of opinion that in the present case the compromise can and should be enforced in these execution proceedings.

4. There can therefore be no doubt that the compromise which was entered into between the parties was enforceable in execution proceedings. The period of twelve years will, accordingly, be computed from the date of the default, i.e., from 31st May 1933. The application therefore is within time and is not barred by Section 48, Civil P.C. In the result the appeal is dismissed under Order 41, Rule 11, Civil P.C.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //