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Gobardhan Das Vs. Dau Dayal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All273
AppellantGobardhan Das
RespondentDau Dayal
Excerpt:
- .....an 1 sale an 1 in the alternative for the arrest of the judgment-debtor. in the course of the execution proceeding the parties appear to have come to terms, the judgment-debtor agreeing to pay the decretal amount in instalments extending over several years, the last date being 15th january 1928. all the instalments except the last one were paid. on 10th january 1928, the judgment-debtor sent rs. 57-3 0 by money order which was refused by the decree-holder who appears to have claimed rs. 222 in all.2. the decree-holder filed an application for execution on loth january 1928, for recovery of the balance claimed by attachment and sale of the property of the judgment-debtor he admitted that; the last application for execution was for the arrest of the judgment-debtor which had been.....
Judgment:
ORDER

Sulaiman, Ag. C.J. and Bajpai, J.

1. This is a Letters Patent Appeal arising out of an. execution proceeding. A simple money decree was passed on 10th February 1915. On 21st March 1923, an application which was in accordance with law had bean file 1 for execution praying for attachment an 1 sale an 1 in the alternative for the arrest of the judgment-debtor. In the course of the execution proceeding the parties appear to have come to terms, the judgment-debtor agreeing to pay the decretal amount in instalments extending over several years, the last date being 15th January 1928. All the instalments except the last one were paid. On 10th January 1928, the judgment-debtor sent Rs. 57-3 0 by money order which was refused by the decree-holder who appears to have claimed Rs. 222 in all.

2. The decree-holder filed an application for execution on loth January 1928, for recovery of the balance claimed by attachment and sale of the property of the judgment-debtor He admitted that; the last application for execution was for the arrest of the judgment-debtor which had been struck off on 2nd August 1923 on a compromise having been entered into between the parties for the payment of the amount by instalments.

3. An objection was taken that the application was barred by Section 48, Civil P.C. The Court of first instance held that the conduct of the judgment debtor amounted to fraud which saved limitation. The lower appellate Court was inclined to the view that when the compromise was entered into the judgment-debtor honestly intended to pay an 1 has proved his bona fides by paying eight instalments. It did not find that 1 here was fraud committed by him. It however held that the original execution case was still pending and the Court had the right to reopen it at any time and pass fresh orders.

4. On appeal to this Court a learned Judge of this Court relying on the case of Lalta Prasad v. Sura Kumar A.I.R. 1922 All. 145 thought that the action of the judgment-debtor in putting off the decree-holder from executing his decree at once should be taken as fraud if the result thereof is to bar the execution of the decree under the 12 years' rule. He has also pointed out that the subsequent order referred to in Section 48, clause (l)(b) can only be passed within six months of the passing of the decree under Article 175, Lim. Act.

5. The first question that; arises in this case is whether a compromise can ha validly entered into in an execution proceeding and to be treated as a decree capable of execution.

6. Another question is whether the conduct of the judgment-debtor who originally intended to abide by the compromise can be said to amount to fraud because the result of his default is to bar an execution. The third question is whether when anew relief is claimed in an application it can be treated as one for revival.

7. Another question may be whether the subsequent order referred to in Section 48, Sub-Section (l)(b) can apply to an order accepting such a compromise in an execution proceeding irrespective of any plea of limitation.

8. As these are substantial questions of law of some importance, we direct that this appeal may be laid before the Chief Justice for the consultation of a higher Bench.


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