Skip to content


Charitter Shukal Vs. Lal Behari Singh and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in154Ind.Cas.106
AppellantCharitter Shukal
RespondentLal Behari Singh and anr.
Excerpt:
compromise - sale-in execution against minor--provision for payment--payment not made--confirmation of sale--suit for declaration of voidness of compromise and order of confirmation--declaration of voidness of compromise--binding nature of--order of confirmation of sale--validity of--minor--interference in revision--civil procedure code (act v of 1908), order xxi, rule 92, section 115. - - even if the decree be a good one, it is pointed out it is only a declaratory decree and it cannot be executed. the decree is a good decree and it must be held to be binding on the executing court, the order against which the application is made is not one cancelling the confirmation of the sale but merely directing that the objection.kendall, j.1. this is an application by the decree-holder for the revision of an order of the munsif of haveli azamgarh in which he cancelled a previous order passed by him on june 11, 1932, sanctioning a settlement made by the decree-holder and his judgment-debtor. the order of the munsif against which this application is made was passed in consequence of a decree in a regular suit dated april 27, 1933, declaring that the settlement arrived at between the decree-holder and judgment-debtor was null and void.2. the circumstances are as follows. the decree-holder applicant had obtained a decree for money against a minor under the guardianship of his mother. some property of the minor's was attached, but on several occasions an application was made for postponement of the sale. finally,.....
Judgment:

Kendall, J.

1. This is an application by the decree-holder for the revision of an order of the Munsif of Haveli Azamgarh in which he cancelled a previous order passed by him on June 11, 1932, sanctioning a settlement made by the decree-holder and his judgment-debtor. The order of the Munsif against which this application is made was passed in consequence of a decree in a regular suit dated April 27, 1933, declaring that the settlement arrived at between the decree-holder and judgment-debtor was null and void.

2. The circumstances are as follows. The decree-holder applicant had obtained a decree for money against a minor under the guardianship of his mother. Some property of the minor's was attached, but on several occasions an application was made for postponement of the sale. Finally, however, the property was sold on May 20, 1932, a final application for stay had been allowed by the District Judge, but his order reached the executing Court too late to have effect. On the following day the judgment-debtor applied through his mother under Order XXI, Rule 92, to have the sale set aside. The decree-holder opposed this application, but on June 11, 1932, the parties appeared before the Court and made certain statements which amounted to an agreement or settlement in the following terms. The decretal amount was to be paid by October 11, 1932; otherwise the sale was to be confirmed and the objection made by the judgment-debtor of May 27, 1932, was considered to be withdrawn. The money was not paid by October 11, 1932, but the judgment-debtor applied for a further extension of time and offered part payment, but the executing Court refused the extension and confirmed the sale on October 12, 1932. After this the minor through a next friend, one Jangi Singh filed a regular suit for a declaration that the compromise or settlement of June 11, 1932, and also the confirmation of the sale, dated October 12, 1932, should be declared null and void. The Court refused to interfere with the order confirming the sale but decreed the other relief on the ground that the permission of the Court had not been taken to effect a compromise. The judgment-debtor, the present opposite party, then applied to the executing Court for an order setting aside the order of October 12, 1932, confirming the sale. This application was dismissed, but another application by the judgment-debtor to set aside the order of June 11, 1932, on the strength of the declaratory decree was allowed in the order against which the present application is made.

3. It is urged by Mr, Panday on behalf of the applicant that the judgment-debtor cannot now have the confirmation of the sale set aside. He might have appealed against the order of the Court which refused to give a declaration to the effect that the confirmation of the sale was invalid and he might also, it is said, have appealed against the order confirming the sale. If the sale be now set aside, the order will, it is contended, be inconsistent with the decision of the regular Court which refused to declare the confirmation of the sale invalid. It is also suggested that the decision of the regular Court to the effect that the compromise proceedings were invalid was wrong because that compromise was made in the course of execution proceedings which are not governed by Section 141, Civil Procedure Code, that is to say, the rules relating to the permission of the Court being obtained for a compromise by a minor through his guardian do not apply. Even if the decree be a good one, it is pointed out it is only a declaratory decree and it cannot be executed. Therefore, it is argued, the order of the Court confirming the sale must be maintained, and the executing Court was acting without jurisdiction in reopening the matter. On the other side it is pointed out that there could be no appeal against the order confirming the sale and although it is true that there might have been an appeal against an order dismissing the objection under Order XXI, Rule 92, yet as this had been apparently settled by a compromise, no appeal would in this case have been possible. The application objecting to the sale under Order XXI, Rule 92, has never been disposed of on the merits, and this will now be done if the order of the executing Court, against which the present application is made, is maintained.

4. The declaratory decree has not been appealed against and must be held to be binding on the parties, that is to say the compromise by which the objection under Order XXI, Rule 92, was withdrawn and the sale was confirmed must be held to be null and void. All that follows therefrom including the order confirming the sale must also be held to be null and void. In my opinion there is no way of avoiding this conclusion. The decree is a good decree and it must be held to be binding on the executing Court, The order against which the application is made is not one cancelling the confirmation of the sale but merely directing that the objection. to the sale, which has not yet been heard on its merits, but which has been withdrawn under a compromise which has been pronounced to be invalid shall be adjudicated upon. The order of the Munsif is therefore not without jurisdiction and I cannot interfere with it in revision. The result is that the application fails and is dismissed with costs.


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