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Hridoymohan Sanyal Vs. Khagendra Nath Sanyal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1929Cal687
AppellantHridoymohan Sanyal
RespondentKhagendra Nath Sanyal and ors.
Cases ReferredMuhammad Sulaiman v. Jhukki Lal
Excerpt:
- .....to terms and a compromise was entered into between them dated 16th september 1922, by which the decree-holder gave up a part of his claim and it is alleged in the petition of compromise that the judgment-debtor entreated the decree-holder to accept only rs. 350 in satisfaction of the decree including costs. they paid rs. 100 in cash and the balance was agreed to be paid in certain instalments. it was further agreed that if there was default in payment of one of the instalments, the decree-holder would be entitled to realize the entire- sum by way of execution against the properties of the judgment-debtors. the first instalment was due in october 1923. the present application was made on 8th november 1926. it has been found by both the courts below that this application was made within.....
Judgment:

B.B. Ghose, J.

1. We have heard learned advocates on both sides at some length and we must express our acknowledgment to them for the very careful way in which this case has been argued before us.

2. This is an appeal by the decree-holder or rather the person who has applied for execution of an agreement against the judgment and order of the learned Subordinate Judge affirming the decision of the Munsif by which the application of the appellant was dismissed. The facts are shortly these:

3. The appellant obtained a decree for money against the respondents dated 17th December 1913. There were intermediate executions which it is unnecessary to relate now. In one of the execution proceedings the parties came to terms and a compromise was entered into between them dated 16th September 1922, by which the decree-holder gave up a part of his claim and it is alleged in the petition of compromise that the judgment-debtor entreated the decree-holder to accept only Rs. 350 in satisfaction of the decree including costs. They paid Rs. 100 in cash and the balance was agreed to be paid in certain instalments. It was further agreed that if there was default in payment of one of the instalments, the decree-holder would be entitled to realize the entire- sum by way of execution against the properties of the judgment-debtors. The first instalment was due in October 1923. The present application was made on 8th November 1926. It has been found by both the Courts below that this application was made within three years of the due date, as holidays intervened. Both the Courts below have dismissed this application on the ground that it is barred under the provisions of Section 48, Civil P.C., as it was made more than 12 years after the date of the original decree passed in the year 1913. It was argued in the Court below that the present petition is a continuation of the petition of 1922 which ended in the compromise. That argument the learned Subordinate Judge refused to accept and, in my judgment, he gives good reasons for rejecting it. He held that the nature and the scope of the two petitions of 1922 and 1926 are quite different and, therefore, the last petition cannot be considered as a continuation of the previous proceedings. It was also argued that under the circumstances of the case it falls within proviso (b), Sub-section (ii), Section 48, Civil P.C. The Subordinate Judge also rejected that contention. The learned advocate for the decree-holder, however, while not giving up the points that were urged in the Court below has presented the case in a different aspect. His argument amounts to this, that the decree was adjusted by the compromise dated 16th September 1922 and the result of the adjustment was that the original decree was extinguished, That being so, the appellant might have brought a suit upon the agreement dated 16th September 1922; but as both the parties agreed that the money should be realized by execution, the executing Court was given jurisdiction to proceed with the execution of the claim and give relief to the appellant. In support of his contention he has relied upon the case of Thakoor Dyal Singh v. Sarju Pershad Misser [1893] 20 Cal. 22, Sheo Golam Lall v. Beni Prosad [1880] 5 Cal. 27 and Subramania Pillai v. Corera A.I.R. 1925 Mad. 457. The learned advocate for the respondent naturally takes exception to the case being presented in this new form. If the appellant can support his contention from the records of the case, it would only be a matter for costs.

4. What the appellant did in the trial Court was to ask for the execution of what he stated to be an instalment decree on compromise dated 16th September 1922. The question therefore resolves itself into this: can the appellant-realize the money under the compromise-by way of execution on the allegation that he is entitled to the money by that compromise of 1922. If the decree-holder has sought for execution of the decree of 1913, there is no question that that application would be barred by limitation. But the question is whether it is an application to execute that decree. The. Court below has referred to the case of Rani Syama Sundari Devi v. Sree Raj Gopal Acharya Gossami in M.A. 328 of 1920 which the learned Subordinate Judge cited from 27 C.W.N. Notes portion, p. 43. That case has a strong resemblance to the present but is not quite like it. There a decree was passed on 14th December 1905. Parties came to certain terms in adjustment of the decree in 1910 for payment of the decretal amount in instalments. The application for execution was filed on 16th September 1919 and it was held by the Court that this application was barred under Section 48 of the Code. In so deciding, Sir Lancelot Sanderson, C.J., who delivered the judgment of the Court, stated that in his-judgment the application was clearly one for execution of the decree dated 14th December 1905. If that was so, then an application made for its execution on 16th September 1919 was clearly barred under the provisions of Section 48, Civil P.C. The reason why the learned Chief Justice held that the application in that case was for execution of the decree of 1905 is clear from the terms of the compromise entered into by the parties. One of the terms ran as follows:

As long as the amount due under the instalments remains unpaid, the said original decree shall remain in force.

5. From these words it is quite clear that the original decree was not superseded by the compromise but it was only an intermediate arrangement for payment of the original decree and it seems to me that on that ground it was held in that case that the decree-holder desired to execute the original decree of December 1905 in September 1919. Therefore although there is some sort of resemblance of that case with the present, they are quite different because in this case the original decree is altogether superseded and a new arrangement has been entered into and as I have pointed out that in his execution petition the decree-holder wanted to execute the substituted decree of 16th September 1922. The provisions of Section 48 cannot bar that application if that application is otherwise sustainable.

6. The objection raised by the learned advocate for the respondent is that the appellant cannot ask for execution because the parties by entering into a contract cannot give jurisdiction to a Court to realize any money due under a contract by way of execution. The point is not quite free from difficulty. It has, however, been held in a series of cases following the well known case of Pisani v. Attorney General for Gibraltar [1874] 5 P.C. 516 that where there is no inherent want of jurisdiction in a Court in the subject-matter before it or with regard to the person, the parties by agreement may arrange their own procedure and give jurisdiction to the Court to adopt that procedure. Pisani's case was followed in an Indian case by the Privy Council in Sadasiva Pillai v. Ramalinga Pillai [1874] 2 I.A. 219, and then in a series of cases in the High Courts of India. In the case of Dyal Singh v. Sarju Pershad Misser [1893] 20 Cal. 22 a Division Bench of this Court following the Privy Council case held that the parties should be held to the agreement that the questions between them should be heard and determined by proceedings quite contrary to the ordinary cursus curiae and applying this rule to the case, they held that the money due under the agreement there could be realized as in execution of a decree rather than by a recourse to a separate suit. In the ease of Muhammad Sulaiman v. Jhukki Lal [1889] 11 All. 228, Mahmood, J., at p. 233 discussed this question in detail. It is necessary, however, to mention that in these cases Section 257-A was referred to because under the Code of 1882 it was necessary' to have the sanction of the Court with regard to any adjustment of a decree as without such sanction the adjustment would be void in law. There is no such provision in the present Code and therefore the decree-holder and the judgment-debtor can enter into any agreement for adjustment of a decree. In order to enable the executing Court to execute the decree as adjusted, the only requirement is that the adjustment should be certified under Order 21, Rule 2 of the Code. The decree-holder can certify such adjustment at any time as there is no limitation with regard to his certification. But the only question in this case is that if the decree-holder might have brought a separate suit on the agreement, can he not ask for relief in execution by reason of the agreement entered into between the parties that the money should be realized in execution The cases that have been cited above are authorities for that proposition.

7. The result is that the order of the Court below is set aside and the case sent back to the trial Court for allowing the appellant to proceed with the execution of the agreement and to recover the money due under it in the usual way as in the case of a decree. As, however, the case was not presented in the Courts below in the way that it has been done here, the appellant is not entitled to his costs hitherto incurred in any of the Courts. Future costs will abide by the discretion of the Court.

S.K. Ghose, J.

8. I agree.


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