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Soudamini Dassi Vs. Bahari Lal Biswas and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in61Ind.Cas.535
AppellantSoudamini Dassi
RespondentBahari Lal Biswas and anr.
Cases ReferredBemanta Eumari Debi v. Midnopore Zeminiari. Limited
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 34 - suit for declaration of title to property--compromise--mortgage, agreement by plaintiff to execute--execution of compromise decree--execution of mortgage--bond, whether enforceable. - .....decree, and the appellant the reject applied on the 4th march, 1918, for execution of the mortgage-bond in execution of the decree.2. the respondents objected to the application for execution en the ground that the direction in the compromise decree for execution of the mortgage-bond went beyond the subject mutter of the suit in which the decree was paced, opted plat the appellant could not get the life pruned free of the decree, but, must bring e, separate for the purpose be court of fierce instance disallowed 11 objection. on appeal, tie learned district judge for and the rule of the court of first instance and dismissed tie application for execution, on the ground that execution of the mortgage-bond was a matter extraneous to the suit and must be enforced by a separate suit.3. the.....
Judgment:

1. This appeal arises out of proceedings in execution of a decree.

2. It appears that the respondents brought a suit for a declaration that certain property attached by the appellant in execution of a money decree against one Troilokbya belonged to them by right of purchase from the latter before attachment, and was not liable to attachment and tale in execution of the decree, and also prayed for a democracy injunction staying the pale. The suit was amicably fettled and a petition of compromise was filed in Court on the Sid January 1918. Subsequently, difference arose between the particle, and the Court, slier faking evidence in the matter, settled the terms of the compromise which were to the effect that Rs. 392 11 was due from Tricky to the appellant, that the respondents (the plaintiffs) would execute a mortgage-bond for Rs. 339211 cut of which Rs. 50 was to be paid at the time of revision of the bond, the balance being payable under the bond in installments of Rs. 5 per month, that on default of payment of any his the whole amount would be payable, and that the mortgee-bond was to be executed within ten days. A decree embedding the above terms was passed on the 22nd February 1918. The respondents, however, did not execute the bond within the time free field in the decree, and the appellant the reject applied on the 4th March, 1918, for execution of the mortgage-bond in execution of the decree.

2. The respondents objected to the application for execution en the ground that the direction in the compromise decree for execution of the mortgage-bond went beyond the Subject mutter of the suit in which the decree was paced, opted plat the appellant could not get the life pruned free of the decree, but, must bring e, separate for the purpose be Court of fierce instance disallowed 11 objection. On appeal, tie learned District Judge for and the rule of the Court of first instance and dismissed tie application for execution, on the ground that execution of the mortgage-bond was a matter extraneous to the suit and must be enforced by a separate suit.

3. The question far consideration, therefore, is, whether the execution of the mortgage-bond provided for in the compromise decree was a matter which related to the Subject-matter of the suit. It is contended on behalf of the appellant that the execution of the mortgage bond was the consideration for the compromise and, therefore, should be held to be the subject matter of the suit, and reference is made to certain cases. But the mere foot that it formed the consideration of the compromise would not necessarily make it the subject matter of the suit. In many eases of compromise, the parties settle their differences rising to masters which have notice to do with the subject-matter of the with, and although they may form consideration for the compromise, it cannot be Raid that sub matters relate to the Suit. In such cases, although all the terms are to be recorded, the decree must be restricted to matters relating only to the suit. In the resent case of Bemanta Eumari Debi v. Midnopore Zeminiari. Limited 53 Ind. Cas. 524 : 24 C.W.N. 177 : 37 M.L.J. 525 : 17 A.L.J. 1017 : (1920) M.W.N. 66 : 27 M..L.T. 42 : 11 L.W. 301 : 46 I.A. 240 : 31 C.L.J. 298 : 22 Bom. L.R. 488 : 47 C. 485 (P.C.) the Judicial Committee, referring to the provisions of Section 375 of Act XIV of 1882 Order XII, rule, of the present Code observed as follows: The terms of this section need careful scrutiny. In the first place, it is plain that the agreement or compromise, in whole and not in part, is to be recorded, and the decree is then to COL fine its operation to so much of the subject matter of the suit as is dealt with by the agreement. Their Lordships are not aware of the execution system by which documents are recorded in the Courts in India, but a perfectly proper and effectual method of carrying out the terms of this section would be for the decree to recite the whole of the agreement and then to conclude with as order relative to that part that was the subject of the suit, or it could introduce the agreement in a schedule to the decree; but in either cane, although the operative part of the would be properly confined to the actual Subject matter of the then the decree taken as whole would include the agreement. This in fact, in what the decree did in the present case. It maybe that as a decree it was incapable of biog executed outside the lands of the suit, but that does not prevent it being received in evidence of is contents.'

4. The question, however, what is the subject-matter of a suit, must depend upon the facts of each ease. In the present case the subject-mater of the suit was, no done, the property in respect of which the plaintiff sought for a declaration of his title. Curiously enough, the decree passed upon the petition of compromise did not expressly declare the plaintiff's title to the land, nor declare that the property, the subject matter of the suit, was not liable to attachment or sale, nor was any relief expressly granted to the plaintiffs. But though the decree was badly drawn up, there is no doubt that it meant to grant the said relief's to the plaintiff as it states that the suit is decreed by is compromise in accordance with the terms settled by the Court' (then the terms are set suit). Unless the decree is construed in that way it must be held to be a wholly anfractuous decree in so far as the claim of the plaintiffs was concerned. The dearer however, directed the plaintiffs to execute a mortgage bond within ten days in favour of the defendant. It 'is found by the learned District Judge (on remand) that the property, the subject matter of the suit, was agreed to be give in mortgage in the mortgage--bond to be executed by the plaintiffs. In substance, therefore, the decree must be taken to be a decree declaring the plaintiff's title to the property and granting the other relief's prayed for, Subject to a mortgage which was to be aerated by the plaintiffs on the property the subject matter of the suit) by executing a mortgage-bond within ten days. A decree may be passed in favour of the plaintiff declaring his title, say, to some land the subject-matter of the suit), or awarding him possession of it, subject to some rights in favour of the defendant in respect of such land, and directing the plaintiff to do something for securing such rights to the defendant, it cannot be said in such a case, that the thing which the plaintiff is directed by the Court to do is extraneous to the suit and must be enforced by the defendant by a separate suit. It is the condition upon which the Court grants a decree to the plaintiff in respect of the subject matter of the suit, and if the parties agree to such a decree by consent, we do not think that such a matter should be held to be one not relating to the suit. In the present case the plaintiffs got the sale of the property stayed and other reliefs in respect of the property the subject matter of the suit under the Caponize, one of the terms of which was that they would execute a mortgage-bond in favour of the defendant within ten days in respect of the very property which was the subject-matter of the suit. The decree embodied the term as to t he execution of the mortgage-bond and it must be held, therefore, that the decree directed the plaintiffs to execute the mortgage-bond.

5. It is contended on behalf of the respondent that the decree is vague and indefinite, because it does not provide for interest payable under the band to be executed. But the bond was to be an installment-bond, and no interest was agreed upon to be paid.

6. We are accordingly of opinion that the execution of the mortgage-bond was a matter relating to the suit, and having been directed by the decree, is potable of being enforced in execution of the decree under the provisions of Order XXI, Rule 34, of the Civil Procedure Code.

7. The order of the lower Appellate Court is accordingly set aside and that of the Court of first instance restated with costs, 1 gold mohur.


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