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Dwarka Nath Karmakar Vs. Lalit Mohan Karmakar - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in97Ind.Cas.576
AppellantDwarka Nath Karmakar
RespondentLalit Mohan Karmakar
Excerpt:
c.p.c. (act v of 1908), section 47 - executing court, if can go behind decree--contemporaneous agreement not to execute decree, if can be, given effect to in execution. - .....the respondent. the suit in which this decree was obtained was decreed on a solehnamah. when the decree-holder attempted to execute his decree the judgment-debtor put in an objection that it was agreed between the parties that the original suit should be decreed on a solehnamah on the understanding that a petition admitting full satisfaction would be filed without any money being paid by the judgment-debtor. both the lower courts seem to have found that this contention of the judgment debtor has been proved that there was no intention that the decree should be executed. the decree-holder has appealed to this court and he contends that this is not a question that falls within the provisions of section 47, because it does not relate to discharge, execution or satisfaction of the decree......
Judgment:

Cuming, J.

1. The facts of the case out of winch this appeal arises are these the decree-holder who is the appellant before us applied to execute a certain decree which he had obtained against the respondent. The suit in which this decree was obtained was decreed on a solehnamah. When the decree-holder attempted to execute his decree the judgment-debtor put in an objection that it was agreed between the parties that the original suit should be decreed on a solehnamah on the understanding that a petition admitting full satisfaction would be filed without any money being paid by the judgment-debtor. Both the lower Courts seem to have found that this contention of the judgment debtor has been proved that there was no intention that the decree should be executed. The decree-holder has appealed to this Court and he contends that this is not a question that falls within the provisions of Section 47, because it does not relate to discharge, execution or satisfaction of the decree. He contends that this arrangement if it was entered into was entered into before the decree and, therefore, does not relate to the satisfaction, discharge or execution of the decree passed.

2. This contention, I think, is correct. It is not open to the Executing Court to go behind the decree itself and to find that there was a contemporaneous arrangement that the decree should not be executed.

3. The order of the lower Appellate Court must, therefore, be set aside and the case is remanded to the Court of first instance in order that the execution may be proceeded with. The appellant is entitled to his costs both here and in the lower Courts. Hearing fee three gold mohurs.

Ghose, J.

4. I agree.


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