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Ghulam Nabi Khan Vs. Abdul Gani Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Revn. No. 88 of 1979
Judge
Reported inAIR1981J& K103
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 and 115
AppellantGhulam Nabi Khan
RespondentAbdul Gani Khan
Appellant Advocate J.N. Langer, Adv.
Respondent Advocate M.A. Nehvi, Adv.
DispositionRevision dismissed
Cases ReferredJugal Kishore v. Rao Cotton Co. Lid.
Excerpt:
- .....judge, small causes, srinagar. the decretal amount including the cost amounted to rs. 1,795/-. the decree-holder filed an application for the execution of the decree. during the pendency of the execution proceedings, the parties entered into a compromise by which the decree-holder agreed to grant rebate and accept the sum of rs. 1,157/- only and, that too, in two instalments of rupees 200/- and rs. 957/-. the agreement was subject to the condition that the judgment-debtor shall pay the first instalment on 20-10-74 and the other within one year thereafter and, that in the event of default the decree-holder shall be entitled to recover the decretal amount in full as provided in the decree. in terms of the compromise, the judgment-debtor paid the first instalment of rs. 200/- on the due.....
Judgment:
ORDER

Mufti Baha-ud-din Farooqi, Ag. C.J.

1. One Abdul Gani Khan (hereinafter called the decree-holder) obtain-ed a money decree against Ghulam NabiKhan (hereinafter called 'the judgment-debtor') from the Court of the Judge, Small Causes, Srinagar. The decretal amount including the cost amounted to Rs. 1,795/-. The decree-holder filed an application for the execution of the decree. During the pendency of the execution proceedings, the parties entered into a compromise by which the decree-holder agreed to grant rebate and accept the sum of Rs. 1,157/- only and, that too, in two instalments of Rupees 200/- and Rs. 957/-. The agreement was subject to the condition that the judgment-debtor shall pay the first instalment on 20-10-74 and the other within one year thereafter and, that in the event of default the decree-holder shall be entitled to recover the decretal amount in full as provided in the decree. In terms of the compromise, the judgment-debtor paid the first instalment of Rs. 200/- on the due date. He did not pay the second instalment in time and paid the same much later. The decree-holder filed an execution application for the execution of the decree in terms of the compromise. The Executing Court of the Judge, Small Causes, allowed the execution. On appeal the Addl. District Judge, Srinagar, upheld the order.

2. The argument of the learned counsel for the judgment-debtor is that the Courts below have erroneously ordered the execution. His contention is two-fold. Firstly, that the decree was not executable. Secondly, that the execution application was not in accordance with law. Dealing with the first point, the learned counsel for the judgment-debtor urged that the Executing Court has no power to alter or vary the decree under execution and to substitute a new decree for it. Even the consent of the parties cannot confer such jurisdiction on the Executing Court. In support of his contention he relied upon a decision of the Division Bench of this Court in Firm Madhe Lal Durga Dass v. Mohamad Din ((1937) 39 Pun LR (J & K) 23). In reply learned counsel for the decree-holder contended that the compromise was not intended to supersede the decree. It merely provided the mode of executing the decree. The decree-holder was entitled to execute the decree on default in terms of the compromise. In support of his argument he relied upon a decision of the Punjab High Court in Sehgal Bros. v. Bharat Bank Ltd. (AIR 1961 Punj 439).

3. It is true that a compromise providing for a new decree in place of a decree underexecution is not executable, but the same is not true about a compromise which regulates a mode of payment of the decree under execution and any such compromise is executable. To borrow the language of the Privy Council in Oudh Commercial Bank Fyzabad Ltd. v. Bind Basani Kuer (AIR 1939 PC 80):

'If it appears to the Court acting under Section 47 that the true effect of the agreement was to discharge the decree forthwith in consideration of certain promises by the debtor, then no doubt the Court will not have occasion to enforce the agreement in executing proceedings, but leave the creditor to bring a separate suit upon the contract. If, on the other hand, the agreement is intended to govern the liability of the debtor under the decree and to have the effect upon the time or manner of its enforcement, it is a matter to be dealt with under Section 47. In such a case to say that the creditor may perhaps have a separate suit is to misread the Code which by requiring all such matters to be dealt with in execution discloses a broader view of the scope and the functions of the Executing Court.'

4. Thus the matter rests upon the intention of the parties as expressed in the agreement than on anything else. In the case of Mohamad Din (1937-39 Pun LR (J & K) 23) (supra) the Court apparently found that the effect of the agreement was to alter and vary the decree in execution and to substitute a new decree for it. On this finding it held that the decree was not executable. On the other hand, in the case of Sehgul Bros. (AIR 1961 Punj 439) (supra) the Court found that the efiect of the agreement was merely to regulate the mode of payment and consequently there was no novation of the decree. The two authorities cannot, therefore, be deemed to be conflicting, as the learned counsel seem to think. The question that really arises is whether the parties intended that the existing decree shall stand satisfied because of the agreement between them or that the intention merely was to provide the mode in which the existing decree was to be executed. This takes us to the terms of the compromise which said:

'(1) That the decree-holder grants a rebate of Rs. 695/- to the judgment-debtor and agrees to recover a sum of Rs. 1,157/-, only against a sum of Rs. 1,795/- on the condition that the judgment-debtor pays a sum of Rs. 200/- on or before 22nd of Oct.,1974, and the balance amount of Rs. 957/-within one year thereafter.

(2) That in the event of default the judgment-debtor will forfeit the right to claim the rebate and that the decree-holder shall be entitled to recover the compromise amount then due along with the amount of rebate from the judgment-debtor.'

5. The words and substance of the agreement leave no room for doubt that the agreement was to regulate the mode of payment only and was not intended to supersede the decree under execution. In the circumstances, the first objection is mis-conceived and must be rejected.

6. Dealing with the second point, learned counsel for the judgment-debtor, contended that the application for execution of the decree does not mention the date of the decree on Clause 3 nor does it specify under Clause 10 the movable and immovable property sought to be attached, in execution of the decree. He urged that the defects were fatal. Undoubtedly, these defects are there, but this objection was not taken either before the Executing Court or before the Appellate Court. Had such objection been taken, the application, could have been returned. The judgment-debtor cannot be heard in support of this objection at this late stage. In this I am supported by a judgment of the Supreme Court in Jugal Kishore v. Rao Cotton Co. Lid. (AIR 1955 SC 376) in which it was found that the application for execution was defective in that although it purported to be an application for execution under Order 21, Rule 11, it did not comply with the requirements of that rule in the sense that it did not specify the several modes in which the assistance of the Court was required. But this objection was not taken either before the Executing Court or before the Appellate Court. The objection was, however, taken in further appeal before the Supreme Court and the Court held that it was not open to the appellant to take this objection at that late stage. Accordingly the second point also fails.

7. The result is that this revision fails. It is dismissed accordingly, but without any order as to costs. The parties are directed to appear before the Execution Court on10th Nov. 1980.


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