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Lala LachhmIn Das Vs. Baba Kali Kamali Wala Ram Nath - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in64Ind.Cas.990
AppellantLala LachhmIn Das
RespondentBaba Kali Kamali Wala Ram Nath
Excerpt:
.....order xxx, rule 2 - adjustment of decree--application by judgment-debtor--denial of adjustment by decree-holder--procedure--oral agreement as to adjustment--execution court, power of--evidence act (i of 1872), section 92. - - the record before us does not explain why he failed to obtain execution in the manner asked for. as a matter of fact, by reason of the court being closed during the vacation, the judgment-debtor's application was within time as an application under the second clause of order xxi, rule 2 of the civil procedure code, and there is very good authority for the proposition that the decree-holder, when brought into court by such an application, must show good cause why it should not be granted. prima facie the decree-holder showed good cause, when he denied that there..........in respect of two consecutive instalments, execution could be taken out for the entire amount. the decree holder on the 23rd june 1920 applied to the court which had passed the decree for execution of the same according to its terms, alleging that no instalment had ever been paid, and at the same time asked to have the decree transferred to the civil court at saharanpur within whose jurisdiction the judgment-debtor resided. on the 2nd july 1920 he applied for execution of his decree by arrest of the person of the judgment-debtor. the record before us does not explain why he failed to obtain execution in the manner asked for. the court remained open until the 24th september 1920, when it closed for annual vacation. it re-opened on the 25tb october 1920 and on that date the judgment-debtor.....
Judgment:

Piggott, J.

1. This is a judgment debtor's appeal in an execution case and it comes before us under the following circumstances:--The decree in question is one passed on the 14th of February 1920. It has some bearing on the equities of the case, though not on its legal aspects, that this was a compromise decree under which the judgment debtor was at liberty to satisfy it by easy instalments. There was, however, a provision that, on default being made in respect of two consecutive instalments, execution could be taken out for the entire amount. The decree holder on the 23rd June 1920 applied to the Court which had passed the decree for execution of the same according to its terms, alleging that no instalment had ever been paid, and at the same time asked to have the decree transferred to the Civil Court at Saharanpur within whose jurisdiction the judgment-debtor resided. On the 2nd July 1920 he applied for execution of his decree by arrest of the person of the judgment-debtor. The record before us does not explain why he failed to obtain execution in the manner asked for. The Court remained open until the 24th September 1920, when it closed for annual vacation. It re-opened on the 25tb October 1920 and on that date the judgment-debtor himself came into Court. He presented a petition, the precise terms of which will require to be further examined, but which purported to be under the second clause of Order XXI, Rule 2, of the Code of Civil Procedure, and asked the Court to issue notice to the decree-holder to show cause why the adjustment of the decree should not be recorded. The decree-holder presented himself in Court on the 4th of December 1920, denied all the allegations of fact contained in the judgment-debtor's petition and alleged that there had been no payment made out of Court under the decree and no adjustment of the decree, in whole or in part, to his satisfaction. The judgment-debtor desired to tender evidence in proof of certain facts set forth in his application. The Court refused to hear him and recorded a brief order, to the effect that the adjustment alleged by the judgment-debtor not being certified by the decree-holder, the Execution Court had no jurisdiction to enquire into the alleged adjustment. It accordingly disallowed or rejected the judgment-debtor's petition. The Court was, no doubt, referring to the provisions of the 3rd Clause of Order XXI, Rule 2. The appeal before us is against this order. The learned Subordinate Judge was either under a misapprehension of fact, or under a misapprehension of law, when be passed his order in the particular form in which he did. He may have thought that the judgment-debtor's petition of the 25th October 1920 was beyond time as a petition under Order XXI, Rule 2, Clause (2) of the Civil Procedure Code, and that, therefore, no possible question could arise of a payment duly certified to the Court, when once the decree-holder declined to certify such payment. On the other hand, he may have thought that the decree-holder had shown sufficient cause, in any event, against the alleged adjustment being recorded when he denied that any adjustment had taken place. As a matter of fact, by reason of the Court being closed during the vacation, the judgment-debtor's application was within time as an application under the second clause of Order XXI, Rule 2 of the Civil Procedure Code, and there is very good authority for the proposition that the decree-holder, when brought into Court by such an application, must show good cause why it should not be granted. Prima facie the decree-holder showed good cause, when he denied that there had been any satisfaction or adjustment of the decree; but ordinarily a judgment debtor would be permitted in such circumstances to produce evidence, with a view to satisfying the Court that the decree-holder was not speaking the truth and that the decree had as a matter of fact been paid up or otherwise adjusted, in whole or in part. In the present case, however, the decree-holder was in a much stronger position and, although the order of the Court below cannot be sustained on the precise ground on which it apparently proceeds, it was a correct order under the circumstances. What has been pointed out to us on behalf of the respondent is this that, on the appellant's own showing, the decree had not been adjusted in whole or in part to the satisfaction of the decree-holder on the 25th October 1920, when the judgment debtor's petition was presented to the Court. What the judgment-debtor alleges to have taken place is somewhat as follows. On the day after the arrest of the judgment-debtor had been applied for, there was a meeting of the parties concerned, in the presence of members of the brotherhood, and an oral agreement was reached. That agreement was to the effect that the decree-holder would accept satisfaction of his decree in a modified form and would abandon the execution proceedings which were being taken, as soon as four specified conditions had been fulfilled by the judgment-debtor. One of these was a cash payment of Rs. 1,000. Another was the execution in favour of the decree-holder of a sale deed conveying to him a certain enclosure in the town of Deoband valued at Rs. 5,600. The next was the execution by the judgment-debtor of a deel transferring to the decree-holder all his own rights under a certain mortgage of the 8th of Marsh 190b. Finally, the judgment-debtor was to execute yet another sale-deed, conveying certain land in the village of Rankhandi to the decree-holder, which land was alleged to be worth Rs. 4,500. Now it is admitted that, up to the 25th of October 1920, and indeed up to the present day. the judgment-debtor has not done any of the things which according to his petition he had covenanted to do. It cannot be said that this petition explains in any way his own failure to execute the documents which he says he had bound himself to execute. Beyond all question there had been no adjustment of the decree to the satisfaction of the decree-holder and there has been none to this day. The order of the Court below was, therefore, perfectly correct. We have been asked to go further into the matter and to consider what the position would be if the judgment-debtor were now to set to work to perform his part of the alleged oral contract. I do not think it is necessary for us to do this: it seems to me fairly clear that an oral agreement, not as yet performed by either party, could not successfully be set up so as to prevent a decree-holder from proceeding with the execution of his decree. On the facts stated in the judgment-debtor's own petition, the decree holder had not bound himself by anything more than an oral agreement. Whether it was or was not open to him to reconsider his position; whether he was not justified in doing so by facts ascertained by him subsequently to the date of the alleged oral agreement--these and similar questions might arise, if this were a suit far specific performance of the alleged oral agreement of the 3rd of July 1920, or a claim for damages against the decree-holder for having refused to abide by that agreement. I think the Court below was right in holding that such matters could not be enquired into by an Execution Court, which could not conceivably substitute a different decree for the one which it was sailed upon to execute, or give the decree holder in place of the decree under execution some sort of a decree for specific performance of a contract orally entered into. Under the circumstances of this case, therefore, I am quite satisfied that the order of the Court below was right and that this appeal must fail. I would dismiss the appeal with costs, including fess on the higher scale. :

Walsh, J.

2. I entirely agree that the appeal fails. I agree also that the learned Judge in the Court below did not put his finger really upon the weak spot in the judgment debtor's application. As at present advised, I do not think the absence of a certificate by the decree holder is necessarily a bar to an inquiry into the facts where a real adjustment is alleged. In my opinion, Sub-section (2) of Rule 2 of Order XXI enables a judgment-debtor to force the decree-holder into Court and if he has proper materials, to call upon him to show cause why an alleged adjustment should not be recorded as certified. I am personally indebted to the argument of Mr. Durga Prasad on behalf of the respondent in this case. It seems to me that he has put the real objections to the judgment debtor's contention on the right ground, I will confine, myself to the main point he argued by quoting a dictum which he cited from one of the unauthorised reports, which puts the matter as clearly as it can be put. I agree with Mr. Durga Prasad's contention that this application was in substance a suit for specific performance and the dictum, which I adopt is as follows: 'An incohate contract, which, if completed, would bar execution of a decree, cannot be pleaded as a bar to execution under Order XXI, Rule 2, and the judgment-debtor cannot claim that the contract should be completed and then be invoked in bar of execution,'

3. There is another ground based upon the general law upon which, I think, the judgment-debtor's application was bound to fail. By his own showing he was setting up a verbal agreement by the decree-holder to accept some variation, or as it may also be put, some new contract in substitution of the original decree which was still in the executory stage, and ha proposed I to prove that agreement by verbal evidence. According to paragraph 1 (b) of his application, he alleged a mutual agreement made before members of the brotherhood and respectable persons, by which it was settled that (1) a sale deed should be executed, (2) that cash should be paid. To my mind that allegation offends against Section 92 of the Evidence Act, which provides as follows: 'When the terms of any contract, etc., etc., or any matter required by law to ba reduced to the form of a document have been proved, etc., no evidence of any oral agreement or statement shall be admitted, as between the parties...or their representatives in interest for the purpose of contradicting, varying, adding to, or subtracting from its terms.' A new agreement is clearly a matter contradicting or varying the terms of the original decree. Proviso 4 makes the matter even clearer. There can be no question that a decree is a matter required by law to be reduced to the form of a document. Appendix D to the Code of Civil Procedure contains statutory forms for decrees, which must be in writing and must accord with the judgment, which is also to be in writing, I agree with my brother that, strictly speaking, it is not necessary to decide this question. On the other hand it does arise on the appellant's own showing in the Court below and would, in my judgment, have bean sufficient ground for dismissing his application in toto. It follows that any further attempt to set up this alleged agreement, through any effort which the appellant may hereafter make to repair his own omission, ought to fail unless supported by an agreement in writing signed by the decree-holder.

4. I agree with the order passed by my brother.

5. We dismiss this appeal with costs, including in this Court fees on the higher scale.


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