Skip to content


Paramananda Ash Vs. Bhagabati Dei - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberM.A. No. 90 of 1967
Judge
Reported inAIR1969Ori32; 34(1968)CLT1121
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 21, Rule 2
AppellantParamananda Ash
RespondentBhagabati Dei
Appellant AdvocateM.M. Das, Adv.
Respondent AdvocateP.K. Dhal, Adv.
DispositionAppeal dismissed
Cases ReferredSehgal Brothers v. Bharat Bank.
Excerpt:
.....that the judgment-debtor would be in possession of the suit premises for one year from the date of the agreement and after expiry of the said one year he would vacate the premises and deliver khas possession thereof to the decree-holder. das placed strong reliance on md. air 1961 punj 439. for reasons discussed i am clearly of opinion that the decree as modified by ex......of the said one year he would vacate the premises and deliver khas possession thereof to the decree-holder.(ii) if the judgment-debtor fails todeliver vacant possession of the suit premises to the decree-holder after the saidperiod, the decree-holder would be entitled to execute the decree under execution without any further objection fromthe judgment-debtor. _(iii) the decree-holder herewith relinquishes her claim for damages from 1-8-56 to 31-10-63.(iv) for the aforesaid one year commencing from the date of the agreementduring which the judgment-debtor wouldoccupy the house, he would pay rs. 20per month as damages towardsoccupation of the suit premises and if hewould not make such payment, the decree-holder would recover the same by executing the decree through process of.....
Judgment:

G.K. Misra, J.

1. In Title Suit No. 155 of 1955 in the Court of the First Munsif, Cuttack, plaintiff obtained an ex parte decree with costs. The substantive portion of the decree runs thus.

The defendant is directed to give peaceful possession of the house within one month hence, failing which plaintiff will take khas possession of the house through Court. The defendant is directed to pay to the plaintiff an amount of Rs. 66/-on account of arrears and the plaintiff is entitled to damages at the rate of Rs. 10/-per month from the date of the suit till delivery of possession of the house in execution proceeding on payment of proper court-fee. Future interest is not allowed. On 31-7-56 Execution Case No. 156 of 56 was levied for eviction and for recovery of Rs. 214-12-0 including arrear of house rent upto July, 1956 and costs of the suit. On 1-2-64 an agreement (Ex. A) was entered into between the parties, the essential terms of which are extracted hereunder.

(i) Through the intervention of the well-wishers of the parties, it is settled that the judgment-debtor would be in possession of the suit premises for one year from the date of the agreement and after expiry of the said one year he would vacate the premises and deliver Khas possession thereof to the decree-holder.

(ii) If the judgment-debtor fails todeliver vacant possession of the suit premises to the decree-holder after the saidperiod, the decree-holder would be entitled to execute the decree under execution without any further objection fromthe judgment-debtor. _

(iii) The decree-holder herewith relinquishes her claim for damages from 1-8-56 to 31-10-63.

(iv) For the aforesaid one year commencing from the date of the agreementduring which the judgment-debtor wouldoccupy the house, he would pay Rs. 20per month as damages towardsoccupation of the suit premises and if hewould not make such payment, the decree-holder would recover the same by executing the decree through process of execution.

(v) The judgment-debtor has no objection to the decree-holder withdrawing Rs. 214.75 paise which had been deposited by the judgment-debtor in that very execution case towards the decretal dues.

On the aforesaid terms it was proved by both the parties to record the settlement and to dispose of the execution case, in terms thereof. In pursuance of this settlement the execution case was disposed of on 1-2-64.

The judgment-debtor did not pay the money nor vacated possession. The decree-holder accordingly filed Execution Case No. 161 of 1965 for execution of the decree for eviction for recovery of Rs. 120 towards arrears at the rate of Rs. 20/- per month and for recovery of future damages at the rate of Rs. 20 per month to be calculated till the date of eviction.

The judgment-debtor filed an objection under Section 47, C. P. C. which was recorded as Misc. Case No. 8 of 1966. The pleas taken therein were--

(i) On 28-11-65 the judgment-debtor paid Rs. 240 to the decree-holder.

(ii) There was a fresh contract wherein it was agreed that the judgment-debtor would continue to stay in the house till the end of 1968 on payment of Rs. 25 as rent per month.

(iii) The agreement (Ex. A) dated 1-2-64 superseded the decree and the decree-holder had no further right to execute the decree. The decree-holder has to file a fresh suit for eviction and recovery of rent on the strength of Ex. A.

Both the Courts below overruled the objections. Against the order the learned District Judge dismissing the appeal on 30-6-67, this miscellaneous appeal has been filed.

Mr. Das did not press the first two objections as being concluded by the findings of facts that the judgment-debtor did not make payment of Rs. 240 on 28-11-65 and that there was no fresh contract extending the period of judgment-debtor's period of occupation till the end of 1968.

2. The only contention raised by Mr. Das is that the present execution case filed in 1965 on the basis of the original decree, as modified by Ex. A, is not maintainable. The original decree has become time barred. The last execution, being on the basis of Ex. A, is not maintainable if Ex. A is ignored.

This contention requires careful examination.

3. Where the parties entered into an agreement against the execution of the decree, the question whether such an agreement is a bar to the execution, depends upon the nature of the agreement and the intention of the parties. If by the agreement, the decree is superseded and abandoned and an altogether new contract is entered into, the contract would constitute the basis of subsequent suit. On the other hand, if the agreement does not supersede the decree, the Executing Court can inquire into the effect of the agreement and decide the matter under Section 47. C. P. C. subject to the provisions of Order 21. Rule 2, C. P. C., where such an agreement amounts to adjustment of the decree. In Oudh Commercial Bank Ltd.. Fyzabad v. Bind Basni Kuer, AIR 1939 PC 80 the Judicial Committee noted the conflicting authorities and observed thus--

If it appears to the Court, acting under Section 47. that the true effect of the agreement was to discharge the decree forthwith in consideration of certain promises by the debtor, then no doubt the Court will not have occasion to enforce the agreement in execution proceedings, but will leave the creditor to bring a separate suit upon the contract. If, on the other hand, the agreement is intended to govern the liability of the debtor under the decree and to have effect upon the time or manner of its enforcement, it is a matter to be dealt with under Section 47. In such a case, to say that the creditor may perhaps, have separate suit, is to mislead the Court, which, by requiring all such matters to be dealt with in execution, discloses a broader view of the scope and functions of an Executing Court In the light of the aforesaid principle the contention of Mr. Das is to be tested.

4. It would be clear from the terms of the agreement (Ex. A) that it was not intended to supersede the decree. On the contrary, unequivocal terms were embodied in the agreement that in case of default on the part of the judgment-debtor, either to vacate possession or to pay arrears of rent, the decree would be executable and the possession and arrears are to be recovered only through execution proceedings. The agreement does not stand as a bar to execution and no separate suit on the basis of Ex. A is maintainable.

5. Mr. Das, however, contends that the enhancement of the damages to Rs. 20 per month substantially modifies the decree directing payment of Rs. 10 per month. The contention has no force. The agreement must be read as a whole. By one of the terms, the decree-holder relinquished her claim for damages for a period of more than seven years from 1-8-56 to 31-10-63. If this term is taken into consideration, it is not possible to say that rent was enhanced. Even assuming that the rent had been enhanced, it would not amount to supersession of the decree. All would depend upon the terms of the agreement and the intention of the parties. Before their Lordships of the Privy Council further time was given when the judgment-debtor agreed to pay enhanced rate of interest. Their Lordships construed the enhancement as governing the liability of the debtor under the decree and had effect only upon the time or the manner of enhancement of the decree. Relinquishment of the dues of the decree-holder from 1956 to 1963 had effect only upon the time or manner of the enforcement of the decree.

6. Mr. Das placed strong reliance on Md. Hussain Khan V. Motilal, AIR 1961 All 1 (FB) in support of the contention that the aforesaid Privy Council decision has not been accepted as laying down the correct law. It is true that the majority of the Judges constituting the Full Bench have not followed the Privy Council view. With respect I agree with the minority view. The majority view has also been dissented from in Sehgal Brothers v. Bharat Bank. AIR 1961 Punj 439.

For reasons discussed I am clearly of opinion that the decree as modified by Ex. A has not been superseded and is executable.

7. In the result, the appeal fails andis dismissed with costs.


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