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Sheo Golam Lall Vs. Beni Prosad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1880)ILR5Cal27
AppellantSheo Golam Lall
RespondentBeni Prosad
Cases ReferredSadasiva Pillai v. Ramalinga Filial
Excerpt:
application for execution - agreement not to execute under terms or order in conformity with agreement--estoppel. - .....to time, the result of which has been that the judgment-debtor has obtained the consent of the decree-holder to periodical postponements for periods of six months or so, on the condition of paying him interest at the rate originally of rs. 18 per cent., and subsequently of rs. 24 per cent. in each of these, i think certainly in the later petitions, it has been the practice to state the amount due under the decree at the date of the petition, and it has been specially agreed that that amount as principal with interest thereon should be paid. at last, some time in february 1877, an application was lodged by the decree-holder, whether as a fresh application for execution of decree or for continuing proceedings, is immaterial. on the 15th of may 1877, being the date fixed for the sale of.....
Judgment:

Ainslie, J.

1. The decree in this case was made on the 13th January 1873 against the respondent. It was put into execution in that year, and there were further applications made from time to time, the result of which has been that the judgment-debtor has obtained the consent of the decree-holder to periodical postponements for periods of six months or so, on the condition of paying him interest at the rate originally of Rs. 18 per cent., and subsequently of Rs. 24 per cent. In each of these, I think certainly in the later petitions, it has been the practice to state the amount due under the decree at the date of the petition, and it has been specially agreed that that amount as principal with interest thereon should be paid. At last, some time in February 1877, an application was lodged by the decree-holder, whether as a fresh application for execution of decree or for continuing proceedings, is immaterial. On the 15th of May 1877, being the date fixed for the sale of the debtor's property, the debtor put in a petition with the consent of the creditor, by which the sum of Rs. 1,692-6-9 was taken to be the amount of the decree up to date, and it was agreed that in consideration of the creditor allowing the sale to be postponed for six months, the debtor should pay him that sum of Rs. 1,692-6-9 within six months, together with interest thereon at the rate of Rs. 24 per cent. per annum.

2. The order on that application made by the Court was wrong in form. The proper order would have been to suspend further proceedings, and to put the case on the board for hearing on some early date after the expiry of the six months allowed by the decree-holder. Instead of that the case was taken off the file, but with this provision that the attachment should remain. The attachment, therefore, was actually in force on the date on which the Civil Procedure Code of 1871 came into force. This application was made on the 24th January 1878 for proceeding with the execution of the decree. It has been drawn up no doubt in the tabular form prescribed by Section 212 of Act VIII of 1859, but there is no prayer in it for attachment, and it is evident that it is an application to proceed upon what the decree-holder understood to be a subsisting attachment. In fact, we must take it that, although the Court had irregularly struck the case off the file of pending cases, there was legally an application to execute the decree pending at the time that the Procedure Code of 1859 was repealed, and that this application of the 24th January 1878 was made within a reasonable time, and must be treated as a prayer to the Court to go on with the proceedings which had been instituted under the old Code.

3. As to the main question whether the decree-holder is or is not entitled to proceed upon the terms of the agreement of the 15th of May 1877, we think that it is only necessary to refer to the case of Sadasiva Pillai v. Ramalinga Filial (L.R., 2 In. Ap., 219). In that case their Lordships in the Privy Council, taking notice of the general consensus of the Courts in India as to the construction to be put upon Section 11 of Act XXIII of 1861, accepted the ruling of the Indian Courts, although they stated that, had the matter been res integra, they probably would not have taken such a limited view of the matter. But although they accepted the ruling that where the decree is silent as to allowing interest or mesne profits subsequent to the institution of the suit, the Court executing the decree cannot assess or give execution for such interest or mesne profits; they did in that suit allow execution to be taken out for mesne profits which were not specifically included in the decree, but in respect of which the defendant had entered into an agreement to account on the condition of execution of the decree being stayed. Their Lordships were of opinion that this probably was a question relating to the execution of the decree within the meaning of the latter part of Section 11: but even if it did not come under that, they thought that under the ordinary principles of estoppel the respondent could not then say that the mesne profits in question were not payable under the decree.

4. Where parties by mutual agreement make certain terms and inform the Court of them, and the Court sanctions the arrangement and makes an order in conformity with it, either party, who has had the benefit of the arrangement and order, is not at liberty to resile from the agreement. The question, whether such an agreement does or does not violate the rule that a Court cannot add to its decree, becomes under the circumstances one which the Court will not enter into; the party who seeks to raise such question being estopped by his own conduct, and the action of the Court taken thereunder.

5. The Judgment of the lower Court must be reversed, and the decree-holder declared entitled to execute his decree in the terms of the agreement of the 15th May 1877.


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