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Askari Hasan Vs. Jahangiri Mal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1927All167
AppellantAskari Hasan
RespondentJahangiri Mal and ors.
Cases ReferredIshan Chandra Kundu v. Nilratan Adhikari A.I.R.
Excerpt:
- - but we do not find that there has ever been a failure on the part of the judgment-debtor to pay two instalments......396 the proceedings were not concluded by that decree but it was necessary to go on and obtain a final decree under order 34, rule 5 of the code of civil procedure. if this view is followed the present suit must be held to have abated as the applicants did not have their names put on record within three months of the death of bilas rai. the lower court has followed a ruling of the calcutta high court, bechu singh v. bicharam sahu [1909] 10 c.l.j. 91, and certain other rulings, both of the calcutta and the patna high courts, which appear to be in direct conflict with the ruling of the allahabad high court to which we have referred. the patna high court ruling is reported in ishan chandra kundu v. nilratan adhikari a.i.r. 1923 patna 375. in view of this conflict of authority we are of.....
Judgment:
ORDER

Pullan and Dalal, JJ.

1. In this appeal a question arises as to whether the respondents' right has abated; owing to the death of Bilas Rai, who was the original decree-holder in a mortgage suit. The decree which was passed was a compromise decree and allowed for payment of the mortgage money in instalments. According to the view take by the Allahabad High Court in Jagarnath Umar v. Ram Karan Singh A.I.R. 1922 All. 396 the proceedings were not concluded by that decree but it was necessary to go on and obtain a final decree under Order 34, Rule 5 of the Code of Civil Procedure. If this view is followed the present suit must be held to have abated as the applicants did not have their names put on record within three months of the death of Bilas Rai. The lower Court has followed a ruling of the Calcutta High Court, Bechu Singh v. Bicharam Sahu [1909] 10 C.L.J. 91, and certain other rulings, both of the Calcutta and the Patna High Courts, which appear to be in direct conflict with the ruling of the Allahabad High Court to which we have referred. The Patna High Court ruling is reported in Ishan Chandra Kundu v. Nilratan Adhikari A.I.R. 1923 Patna 375. In view of this conflict of authority we are of opinion that the matter should be referred to a larger Bench. We therefore submit the case to the Hon'ble Ag. C.J., with a request that he will constitute a Bench for the determination of the following question:

2. Whether in a compromise decree passed for payment of mortgage money in instalments, and not on a fixed date within six months from the date of declaring the amount due, Order 34, Rule 4 applies, and it is necessary to apply for final decree under Rule 5.

Judgment of the Full Bench

Lindsay, J.

3. The question referred for the opinion of the Full Bench of this Court is as follows:

Whether in a compromise decree passed for payment of mortgage money in instalments, and not on a fixed date within six months from the date of declaring the amount due, Order 34, Rule 4 applies and it is necessary to apply for final decree under Rule 5.

4. We have heard the arguments of counsel in this case and our answer to the reference is as follows: Where _the compromise decree provides for the payment of mortgage money in instalments, and does not provide for payment on a fixed date within six months from the date of declaring the amount due, Order 34, Rule 4 has no application to the case, and consequently it is unnecessary to apply for a final decree in the terms of Order 34, Rule 5.

Pullan, J.

5. (After setting out the above answer the judgment proceeded as follows:) Thus the suit before us was not really an application for preparation of a final decree but an execution application. Consequently there was no question of abatement, and the only point to decide is whether regarded as an execution application this was within time. It has been argued before us that the terms of the compromise decree were not observed by the judgment-debtor and that there was actually a non-payment of two instalments on the 15th of November 1918, and that therefore the present application which was made on the 14th of November 1922 was beyond time. But we do not find that there has ever been a failure on the part of the judgment-debtor to pay two instalments. No doubt the instalment due on the 15th May 1918, was paid late, that is, on the 19th of May, and the succeeding instalment due on the 15th of November 1918 was also paid late, namely, on the 23rd of December. But at that time only one instalment was due because the instalment of the 15th of May had been paid and was no longer in default. We find, therefore, that regarded as an application for execution the present application was within time, and we see no reason to amend the decree of the lower Court on a purely technical point.

6. We therefore dismiss the appeal with costs, but as this has been regarded now as an appeal in execution, costs will be calculated accordingly.


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