Bawa Singh vs Balbhadar Dass

D.K. Mahajan, J.—The only question that requires determination in this execution second appeal is whether a compromise recorded in execution proceedings amounts to a subsequent order within the meaning of section 48 (1) (b) of the Civil Procedure Code.

The facts of the case are that a decree for Rs. 900/- was passed in favour of Balbahadar Dass against Bawa Singh on 3rd August, 1945. In execution of this decree, some property of the judgment-debtor was attached. The judgment-debtor filed objections u/s 47 of the Civil Procedure Code. He also took an objection that the execution application was barred by time. These objections were rejected by the executing Court. The judgment-debtor preferred an appeal, In the appeal, a compromise was arrived at on 13th February, 1958. According to this compromise, Bawa Singh agreed to pay Rs. 650/- to the decree-holder within nine months or to deposit the said amount in the Court of the Senior Sub-Judge, Gurdaspur. In case of default, the decree-holder was entitled to receive the amount in execution. The judgment-debtor withdrew all other objections. It was also agreed that if the decree-holder had to file an execution application after nine months as provided in the compromise on default of the judgment-debtor, the application for execution would be deemed to be within limitation. Default was made by the judgment-debtor and the decree-holder made an execution application for the sum of Rs. 650/- on 23rd January, 1959. Warrants of attachment of land were issued and the land was attached on 17th December, 1959. However, the execution was consigned to the record room on 22nd January, 1960, but the attachment was kept alive. The decree-holder made another application for execution on 19th February, 1960. The same two objections, that is, the land could not be attached and the application was barred by time, were raised. The objection as to limitation prevailed with the trial Court with the result that the application was dismissed. On appeal, the lower appellate Court has reversed the decision, of the trial Court on the question of limitation and has directed that the execution should proceed in accordance with law.

Mr. Bahri who appears for the judgment-debtor relies on a Division Bench decision of the Lahore High Court in AIR 1944 106 (Lahore) . This decision fully supports him. Mr. Aggarwal who appears for the decree-holder relies on Bhiki Mal Murari Lal through Ch. Inder Mal Vs. Kundan Lal and Another, Chaube Mahendra Rao and Others Vs. Lala Bishambhar Nath and Others, ) and Chhatra Pati Pertab Bahadur Sahi Vs. Hari Ram Marwari, . He also relies on a decision of Calcutta High Court in Jatindra Nath Roy Chowdhury and on his death his heirs and legal representatives Narendra Nath Roy Chowdhury and Others Vs. Heramba Chandra Roy Chowdhury and Others, , and on the Lahore High Court in Banarsi Das v. Ramzan A.I.R 1923 Lah. 381. The last case was considered by the Division Bench of the Lahore High Court in Haji Zaheer-ud-Din v. Mt. Amtur Rasheed AIR 1944 Lah. 106=46 P.L.R. 26. There is a conflict of opinion as to whether a compromise-order in execution proceedings amounts to a subsequent order within the meaning of section 48, Civil Procedure Code. There is no direct decision of this Court. It will, therefore, be proper that this matter be settled by a larger Bench. I accordingly direct that the papers of this case be laid before my Lord the Chief Justice for constituting a Division Bench or a Full Bench particularly when there is a Division Bench decision of the Lahore High Court and a Full Bench decision of the Allahabad High Court which need consideration.

JUDGMENT

Grover, J.

(24th September, 1963)-This appeal which arises out of execution proceedings has been referred by Mahajan J. for decision by a larger Bench because of the conflict of authority on one of the main points which arose in the case, namely, whether an order based on a compromise in execution proceedings amounts to a subsequent order within the meaning of section 48 (l)(b) of the Code of Civil Procedure.

The facts briefly stated are that a decree for Rs. 900/- was passed in favour of Balbhadar Dass respondent against Bawa Singh appellant on 3rd August, 1945. When the property of the judgment-debtor was attached in execution, objections were filed u/s 47 of the CPC by him. The executing Court dismissed those objections. He filed an appeal but before the lower appellate Court a compromise was arrived at between the parties on 13th February, 1958. According to this compromise, the judgment-debtor agreed to pay Rs. 650/- to the decree-holder within nine months or to deposit the aforesaid amount in the Court of the Senior Sub Judge, Gurdaspur. In case of default, the decree-holder was entitled to receive the amount in execution. The judgment-debtor withdrew all other objections and also agreed that if the decree-holder had to file an execution application after nine months as provided in the compromise on default of the judgment-debtor, the application for execution would be deemed to be within time. The judgment-debtor committed a default and the decree-holder had to file an execution application for recovery of the sum of Rs. 650/- on 23rd January, 1959. That execution was consigned to the record-room on 22nd January, 1960 but the attachment was kept alive. The decree-holder filed another application; for execution onl9th February, 1960. Two objections were raised by the judgment debtor, to that application, the. first being that the land which had been attached could not be attached and secondly, that the application was barred by time. The trial Court upheld the objection with regard to limitation and dismissed the execution application. The lower appellate Court took a contrary view and has directed that the execution should proceed in accordance with law.

The reference was necessitated by an apparent conflict between the decision of the Lahore High Court in Haji Zaheer-ud-Din v. Mt. Amtur Rasheed, and a Full Bench of the Allahabad High Court in Chaube Mahendra Rao v. Lala Bishambar Nath, and certain other cases which it is unnecessary to mention. However, so far as this Court is concerned, the matter has now been set at rest in a Bench decision in Gopal Chand Bhalla v. Gobind Sarup AIR 1963 P&H. 363=65 P.L.R. 362. It has been held that an order passed by the executing Court directing the payment of decretal amount by instalments or at a future date does amount to a "subsequent order" within the meaning of section 48(1) (b). This decision was given in an appeal under clause 10 of the Letters Patent against one of my decisions reported in Gopal Chand Bhalla v. Gobind Sarup AIR 1959 P&H . 1193 and my view was affirmed. The Bench decision of the Lahore High Court was distinguished in the following words by Harbans Singh J., who delivered the judgment of the Bench:-

Besides these, reliance was placed before the learned Single Judge as well as before us on a Division Bench ruling of the Lahore High Court reported in Zaheer-ud-Din v. Mt. Amtur Rasheed (supra). The facts of this case are, however, distinguishable and they do not help the appellant in this case. In that case an order passed by the executing Court did not embody the terms of the compromise nor did it direct the payment of the decretal amount by instalments. It only noticed that there was a compromise between the parties and in view of that compromise the proceedings were consigned to the record-room. Abdul Rahman J., delivering the judgment of the Bench, clearly observed that the order "does not direct any payment of money at a certain date or at recurring periods although it does take notice of and refers to the compromise between the parties arrived at on that date." In fact, reference was made to an earlier Division Bench decision, to which Shadi Lal C.J. was a party, reported as Banarsi Das v. Ramzan, and that case was distinguished on facts.

Mr. Amrit Lal Bahri agrees that the law as laid down by the Bench is unexceptionable but he contends that in the present case there was no order of the Court directing payment of money and, therefore, it could not be said that there was any "subsequent order" within the meaning of section 48(1) (b) of the Code of Civil Procedure. It is apparent from the order of the lower appellate Court and of the learned Single Judge that after the compromise had been effected between the decree-holder and the judgment-debtor, the Court made an order to the effect that the parties would be bound by the terms of the compromise. This meant that the compromise became a part of the order of the Court and in the compromise itself there was a clear direction that the judgment-debtor was to pay Rs. 650/- to the decree-holder within nine months or to deposit the said amount in the Court of the Senior Sub Judge, Gurdaspur. It cannot, therefore, be said that there was no order directing the payment of money at a future date in the present case. Mr. Bahri has relied a great deal on the Lahore decision Haji Zaheer-ud-Din v. Mt. Amtur Rasheed (supra) but in that case there was no order incorporating the compromise by virtue of which any direction could be spelt out with regard to payment of money. The present case is, therefore, covered by the Division Bench decision of our own Court and the decision of the lower appellate Court must be upheld on the point.

Mr. Bahri has sought to raise another point which is that no execution application was made as soon as nine months had expired after the compromise had been effected on 13th February 1958 and the execution application was made at a later date. Mr. Bahri says the bar of limitation would come in and the execution application should have been dismissed. According to the provisions of section 48 of the Code, no order of the execution of the decree shall be made upon any fresh application presented after the expiration of twelve years from * * where * * * any subsequent order directs any payment of money to be made at a certain date * * the date of the default in making payment. This clearly shows that the application for execution was within time once it is found that a subsequent order was made on 13th February 1958 directing payment of money within nine months. The case law on the point has also been discussed by the learned District Judge and Mr. Bahri has not been able to show how the execution application was barred by time.

In the result, the appeal is dismissed, but in the circumstances there will be no order as to costs.

Falshaw, C.J.

I agree.