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Gokhai Padhan and ors. Vs. Gones Lal Pandit - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in17Ind.Cas.936
AppellantGokhai Padhan and ors.
RespondentGones Lal Pandit
Cases Referred and Sreepati Charan v. Shamaldhone
Excerpt:
decree - execution--alteration of decree--acting upon altered decree for number of years, effect of--mortgage decree providing for interest up to date of grace out silent as to subsequent interest--petition by judgment-debtors for time agreeing to pay subsequent interest and praying for sanction grant of time by court--whether order sanctioned agreement or not--civil procedure code(act xiv of 1882), section 275a--judicial orders, construction of--presumption of judicial acts having been regularly performed--inconsistent positions--parties not to be allowed to assume--practice. - .....of realisation. the decree was made absolute on the 17th july 1905, and shortly afterwards, the decree-holder applied, for sale of the mortgaged properties. the sale proclamation was duly published, and the sale was fixed for the 15th november 1905. on that date, the sale was not held and was postponed. three days later, the judgment-debtors, with the assent of the decree-holder, presented a petition to the court. the true effect of the order made by the court upon this petition is now in controversy between the parties the materiel portion of the petition was in these terms: 'in the bond sued upon by the plaintiff decree-holder, it is stipulated that interest will run at the rate of one percent, up to the date of the realisation of the whole amount, but in the decree passed in this.....
Judgment:

1. This is an appeal on behalf of the judgment debtors against an order for execution of a mortgage decree. The predecessor-in interest of the respondent obtained an ex parte mortgage decree against the appellants on the 19th September 1903. The decree was drawn up in the following terms: 'The suit be decreed ex parte with costs, and interest do run on the principal amount at the bond rate up to six months. If the decretal amount be not paid within six months, then the mortgaged properties be sold in auction.' The decree was made under Section 88 of the Transfer of Property Act, but for some unexplained reason, possibly through oversight, no provision was made in the decree for interest on the decretal amount from the expiry of the period of grace to the date of realisation. The decree was made absolute on the 17th July 1905, and shortly afterwards, the decree-holder applied, for sale of the mortgaged properties. The sale proclamation was duly published, and the sale was fixed for the 15th November 1905. On that date, the sale was not held and was postponed. Three days later, the judgment-debtors, with the assent of the decree-holder, presented a petition to the Court. The true effect of the order made by the Court upon this petition is now in controversy between the parties The materiel portion of the petition was in these terms: 'In the bond sued upon by the plaintiff decree-holder, it is stipulated that interest will run at the rate of one percent, up to the date of the realisation of the whole amount, but in the decree passed in this suit, such interest is ordered to run till six months from the date of the decree, there being no provision for any interest to run up to the date of the payment of the whole amount. We, therefore, saw and approached the plaintiff decree-holder to-day, and having promised to pay interest at the rate of one per cent, up to the date of realisation of the whole amount, as provided in his bond, and having paid him rupees two hundred in cash in part-payment of his decretal money, we asked him for two months' time, that is, up to the 14th January 1906. The plaintiff decree-holder has thereupon agreed to grant two months' time in accordance with the above conditions. We will pay the plaintiff decree-holder the decretal money with interest at one per cent, per mensem from the date of the decree up to the date of realisation, and we pray for the Court's order of sanction in that respect If we pay anything by instalments, we will make such payments with interest at the aforesaid race of one per cent. per mensem. We shall not be able to make any objection with regard to the payment of interest. If we fail to pay, within the aforesaid period, the whole amount due to the plaintiff decree-holder on his decree with interest at the aforesaid rate of one per cent, per mensem, the properties under auction sale will be sold in auction on the 15th January 1906, without service of sate proclamation. We file this petition with the consent of the plaintiff, and pray that Your Honour, in consideration of the above, will be pleased to order that interest will run at the afore said rate of one cent, per mensem from the date of decree to the date of realisation of the whole of the decretal amount due to the plaintiff decree-holder.' At the foot of this petition, the Pleader for the decree-holder stated that he consented to the adjournment mentioned. The Subordinate Judge thereupon recorded an order in the order-sheet to the following effect: To-day the judgment-debtors, having paid rupees two hundred to the decree-holder, file a petition, consented to by the decree-holder, asking for two months' time to pay off the balance, etc., Ordered, that time be granted, and that in accordance, with the terms of the petition for time, the execution sale of the properties put up for sale be postponed till the 14th January next, and if the judgment-debtors fail to pay off the balance within the time granted, the aforesaid properties be sold in auction at 12 noon of the 15th January aforesaid, without service of fresh sale proclamation. Rupees two hundred be credited towards the amount due in this case.' On the date fixed, the money was not paid in full, and on the 20th January following, the application for execution was dismissed on part satisfaction, the sale having been adjourned to the 15th February 1906. The next application for execution was filed on the 13th February 1906, and in this application the decree-holder claimed interest in terms of the agreement embodied in the petition of the 18th November 1905. The judgment-debtors raised no objection to the claim, and made part-payments from time to time. The next application for execution, presented on the 9th July 1906, contained a similar claim for interest; no exception was taken by the judgment-debtors who made part payments from time to time under petitions which unquestionably affirmed the agreement of the 18th November 1905. This application for execution was dismissed on the 21st January 1907, only to be followed promptly by another on the 13th February 1907. To this application, which repeated the claim for interest, the officers of the Court took objection, which was, however, ultimately disallowed. The judgment-debtors, when they appeared, did not take exception to the claim for interest but repeatedly made part-payments and obtained adjournments. The application was dismissed on the 16th July 1907, and was followed by another on the 13th August 1907, in which there was a similar claim for interest, and a similar omission on the part of the judgment-debtors to take exception to the claim. The same state of things happened with three successive applications for execution, filed on the 9th March 1908, 14th November 1908, 11th September 1909. In each of these applications, the decree-holder claimed interest in accordance with the agreement of the 18th November 1905; the judgment-debtors did not dispute the claim, but repeatedly obtained adjournments on part-pay-meats, and agreed to pay the balance of decretal amount on the adjourned date. To summarise the position, after the 18th November 1905, the decree-holder has in, seven successive applications for execution claimed interest on the basis of the agreement embodied in the petition of that date; the judgment-debtors, with knowledge of the claim, have never disputed it, and have, on 58 successive occasions, obtained adjournments upon part-payments and expressly agreed to pay the balance of the entire decretal amount etc., on the adjourned dates Under these circumstances, the decree-holder might well have imagined that his dues would be realised without difficulty; but the unexpected did happen when on the 24th September 1910, he again applied for execution of his decree. The judgment-debtors took exception to the claim on the ground that they had agreed to pay interest at 12 per cent, per annum by the petition of the 18th November 1905, through fear, as the decree-holder would not otherwise consent to an adjournment of the sale, and that the agreement was void, as the requisite sanction had not been accorded by the Court. The Subordinate Judge has overruled this objection, and has held that the decree-holder was entitled to the interest claimed. On the present appeal by the judgment-debtors, two grounds have been urged, first, that the agreement of the 18th November 1905, was void, as it was not sanctioned by the Court under Section 257A of the Civil Procedure Code of 1882, and, secondly, that even if such sanction had been granted, it would have been inoperative, because the agreement was not for the satisfaction of a 'judgment-debt' within the meaning of that section. These positions have been controverted by the respondent as unsound in law, and, it has further been urged on his behalf that the judgment-debtors cannot be allowed to take up, to the detriment of the decree-holder, a position wholly inconsistent with that deliberately, taken up by them on the 18th November 1905 and persistently maintained for more than five years.

2. In support of the first ground, reference has been made to Section 257A of the Code of 1882, which provides that an agreement to give time to a judgment-debtor, or for satisfaction of a judgment-debt, is valid, only if made with the sanction of the Court. This has not been disputed by the respondent, who maintains that the requisite sanction was granted. In our opinion, the construction placed by the respondent upon the order of the Subordinate Judge on the petition of the 18th November 1905, is obviously reasonable and should be accepted. The judgment-debtors asked for time to enable them to satisfy the decree; the decree-holder agreed to give time for a consideration, namely, the payment of interest upon his money which he would, otherwise, be able to realise forthwith by sale of the mortgaged properties. The judgment-debtors explicitly prayed for sanction of the Court. The Court thereupon granted time, and, in accordance with the terms of the petition, postponed the sale. This order has been sought to be interpreted by the judgment-debtors as one for grant of time alone; it has been seriously suggested that the Court gave time in terms of the petition, but did not sanction the agreement for payment of interest. We are entirely unable to accept this view of the matter. Judicial orders must be reasonably construed. No doubt, as indicated in Narendra Lal v. Jogi Hari 32 C.1107 : 2 C.L.J. 107 there is no presumption of law that a particular act required to be performed has been done; but, as repeatedly laid down in cases of the highest authority Saroda Prosaud v. Lutchmeepat 10 B.L.B. 214 at p. 230 (P. C) : 17 W.R. 289 : 14 M.I.A. 529 and Bourne v. Gatliff (1844) 11 Cl. & F. 45 at p. 80 : 8 Scott (N.R.)604 : 7 M. & G. 850 : 44 R.R. 723 judicial acts must be presumed to have been regularly performed: Banwari Das v. Muhammad Mashiat 9 A, 690 at p. 702 : A.W.N. (1887) 254. In the case before us, the Court received the petition and made an order thereon; it is suggested that the Court did not consider the contents of the petition and merely granted the prayer for adjournment in accordance therewith, without adverting to the question whether the consideration for the agreement to give time was or was not reasonable. The assumption we are asked to make is, in our opinion, unwarrantable; it is not sought to be established as well founded by evidence of what took place in Court on that date. On the other hand, the circumstances point to a contrary conclusion. The parties admittedly understood that the sanction had been granted and have uniformly acted on that theory for a series of years. The reason why the Court did not explicitly record its opinion that the consideration for the agreement was reasonable, is not far to seek. The consideration was so manifestly appropriate that there could be no room for controversy as to the propriety of the agreement. As was stated in the petition by the judgment-debtors, the loan carried simple interest at 12 per cent, par annum, which, was to run up to the date of the actual realisation. The mortgage decree had, evidently by an oversight, omitted to provide for payment of interest after the expiry of the period of grace. The result was that it was to the interest of the decree-holder to realise his dues forthwith; the longer his money was withheld by the judgment-debtors, the greater the loss to him; under these circumstances, any creditor of ordinary prudence would have resolutely refused to entertain any suggestion for delay. The judgment-debtors, therefore, consented that interest should run on the decretal amount at the rate mentioned in the bond, which was by no means a high rate. They deliberately adopted this course, because they were anxious, wisely or unwisely, for time and opportunity to pay off the dues of the mortgagee and ultimately to save their property. The agreement, indeed, was so palpably just and reasonable that there would be no occasion for protracted discussion in Court or a lengthy statement of the reasons which induced the Judge to accord his sanction thereto. We feel no doubt whatever that the agreement was sanctioned by the Court under Section 257 A, because the Court deemed the consideration reasonable under all the circumstances of the case. The first ground, therefore, fails.

3. In support of the second ground, it has been argued that the sum due on a mortgage decree for sale, is not a 'judgment-debt' within the meaning of Section 257A of the Code of 1882, and reliance has been placed upon the cases of Kedar Nath v. Kali Churn 25 C. 703 : 2 C.W.N. 353; Kartic Nath v. Juggernath 27 C. 285; In re Lloyd Llyod v. Lloyd (1903) I Ch. 385 at p. 398 : 72 L.J. Ch. 78 : 87 L.T. 541 : 51 W.R. 177 : 19 T.L.R. 101 and Heath v. Pugh (1881) 6 Q.B.D. 345 : 50 L.J.Q.B. 573 affirmed on appeal, Pugh v. Heath (1882) 7 Ap. Cas. 235 : 51 L J.Q.B. 367 : 46 L.T. 321 : 30 W.R. 553. It has been suggested, in substance, that the expression 'judgment-debt' is used in its technical sense familiar to English lawyers and does not consequently include a decree for sale on a mortgage. It is not necessary for our present purpose to decide the question raised, though it may be observed incidentally that a similar question arose upon the construction of Section 230 of the Code of 1882, and the Legislature has reproduced that section, in Section 48 of the Code of 1903, so as to include within its scope decrees for money as also mortgage decrees. The answer to the contention of the appellants is that if it was not competent to the Court to sanction the agreement, no question arises as to whether such sanction was or was not in fact accorded. The position then is that the parties engrafted on the decree a condition, and the validity of such condition has been asserted on the one hand and conceded on the other in successive execution proceedings. Under these circumstances, the case is completely covered by the decision of Sir Richard Couch in Dinonath Sen v. Guruchurn Pal 14 B.L.R. 287 : 21 W.R. 310. No doubt, as pointed out in Ram Runjun v. Jowhurujumah 23 W.R. 129 a decree must ordinarily be executed as originally made and the parties cannot be permitted to make a substantial alteration therein: Bhoopendro Nath v. Kalee Prosunno 24 W.R. 205 and Heera Lall v. Dhunput Singh 24 W.R. 282. But where, as here, the parties have acted upon the decree as altered for a number of years and treated it as valid, the judgment-debtors, who have been substantially benefited thereby, cannot be permitted to take exception to its validity. The second ground, consequently, fails.

4. We are further clearly of opinion that the judgment-debtors cannot be permitted at this distance of time to repudiate their agreement. It is not necessary, for our present purpose, to consider whether the doctrine recognised by the Judicial Committee in the case of Mungul Pershad Dichit v. Grija Kant 8 C. 51 : 11 C.L.R. 13 : 8I.A. 123 and applied in the cases of Sheik Budan v. Ramachandra 11 B. 537; Narayana v. Gopala Krishna 23 M. 355 : 15 M.L.J. 247; Ramasamy Naik v. Ramaswami Chetti 30 M. 255 at p. 263; 2 M.L.T. 167 : 17 M.L.J. 201; Mon Mohan v. Dwarka Nath 12 C.L.J. 312; 7 Ind. Cas. 55; Khoshal Chandra v. Ukiladdi 14 O.W.N. 114 : 3 Ind. Cas. 47 and Sreepati Charan v. Shamaldhone 15 C.L.J. 123 : 15 C.W.N. 661 : 8 Ind. Cas. 22 is of any assistance to the respondent. But we are plainly of opinion that he can rely upon the elementary doctrine that parties litigant are not allowed to assume inconsistent positions in Court to the detriment of their opponents; where they have elected to adopt a certain course of action, they will be confined to the course they have deliberately adopted (Bigelow on Estoppel, 5th Edition, pages 673 and 717). In the case before us, the decree-holder, upon faith of the agreement of the judgment-debtors to give interest, has allowed the latter the use of his money; but for this agreement, he would have realised his money and invested it in other securities. To allow the judgment-debtors now to resile from the position they have taken up, would be to assist them in the perpetration of a fraud of the gravest character upon the decree-holder. If the contention of the judgment-debtors were to prevail, the sums already paid would have to be credited against the sum determined as due on the 19th September 1903, and practically nothing would be now due to the decree-holder; in other words, the judgment-debtors would be allowed the use of the money of the decree-holder for all these years without any consideration: the proposition has only to be stated to be repudiated as wholly unjust and inequitable.

5. The result is that the order of the Subordinate Judge is confirmed and this appeal dismissed with costs. In view of the amount in controversy, the nature of the objection raised, and the fact that the hearing of the appeal has extended over three days, we assess the hearing fee at sixty gold mohurs.


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