Lachhman Lal vs Padarath Singh and Others

Jwala Prasad, J.—Miscellaneous Appeal No. 30 and Civil Revision No. 71 of 1923 arise out of an order passed on the 6th January 1923 by the District Judge of Gaya in connection with execution proceedings. The decree-holder is the applicant before us. He had obtained a compromise decree against the opposite party on the 27th June 1921. As the decree was not satisfied, he levied execution thereof in April 1922, and the properties of the judgment-debtor were sold in three lots on the 28th June, 1922, fetching altogether Rs. 1,077 which exactly covered the amount due under the decree. The judgment-debtor applied under Order 21 Rule 90 to have the sale set aside which led to Miscellaneous Judicial Case No. 42 of 1922. On 12th September, 1922 the parties filed a joint petition of compromise, by the terms whereof the sale was to be set aside upon the judgment-debtor paying up a sum of Rs. 1,160 to the decree-holder up to the 25th October 1922. The 26th October was a holiday, and on the 27th October the judgment-debtor filed a petition stating that he had tendered the aforesaid sum of Rs. 1,160 on the 25th October to the decree holder and that he refused to accept the same and that when the judgment-debtor came to Court to put in t e money he found that the Court had risen for the day. He therefore asked for a Chalan to deposit the money, and prayed that the sale be set aside. The Court allowed judgment-debtor to deposit the money "at his own risk." In the meantime, on the 25th October 1922 the Court had passed an order stating that the judgment-debtor had failed to pay up the money as compromised and that the sale be confirmed and the execution case dismissed on part satisfaction. The Court further dismissed the Miscellaneous Judicial Case No 42 of 1922, that is, the proceeding instituted by it upon the application of the judgment-debtor under Order 21, Rule 90. The result of the order of the Subordinate Judge has been that the sale is confirmed.

Aggrieved by the order of the Subordinate Judge, the judgment-debtor appealed to the District Judge who, by his order of the 6th January 1923, remanded the case with directions to dispose of the application of the judgment-debtor of the 27th October 1922 after taking evidence.

Mr. Mitra on behalf of the decree-holder contends that this order of the District Judge is without jurisdiction, inasmuch as no appeal lay to him from the order of the Subordinate Judge passed on the 25th October 1922 Mr. Mitra says that the order of the Subordinate Judge was passed on compromise and therefore no appeal lay from that order u/s 96, Clause (3) of the Code of Civil Procedure. The judgment-debtor''s contention is that the order, of the Subordinate Judge was passed in contravention of the compromise, inasmuch as he had tendered the money on the 25th October well within time fixed by the terms of the compromise for payment of the same. If this contention is correct, Section 96 of the CPC can in no case apply. That section would also seem to be inapplicable inasmuch as it is restricted to suits only and cannot be extended to execution proceedings. Reliance is placed upon Section 141 of the Code which says that the procedure laid down in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction. The history of the legislation has been fully summarised in Mulla''s (now Hon''ble Mr. Justice Mulla) Code of Civil Procedure, 7th edition, page 307. The section corresponds to Section 647 of the old Code of 1882, and the conflict between tie different High Courts of Calcutta, Allahabad and Bombay was set at Test by an explanation being added to the section excluding the application thereof to execution proceedings. The Privy Council decision in the case of Thakur Prasad v. Sheikh Fakirullah [1894] 17 All. 106 construed the section as it then stood, without the explanation, as being confined entirely to original matters instead of to suits. The present Section 141 has taken advantage of the discussions in the authorities quoted above and is worded in such a manner as to leave no manner of doubt that it is confined entirely to proceedings in original suits. We are, however, relieved of the question in view of the fact that the judgment-debtor''s application was under Order 21 Rule 90 to set aside the sale and that the result of the order of the Subordinate Judge of the 25th October 1922 has been to disallow the application and to confirm the sale. The Code expressly provides for an appeal from such an order: vide Order 43 Rule I(j). Therefore we have no hesitation in overruling the contention of Mr. Mitra and in holding that an appeal properly lay to the District Judge.

Upon merits also we have no hesitation in holding that the view taken by the learned District Judge is correct and that the judgment-debtor is entitled to have the allegations made by him in the petition of the 27th October 1922 fully investigated and that if his allegations be true he acted well within the terms of the compromise petition, and the sale should have been set aside.

In the result, the appeal and the application are dismissed with costs which will be calculated according to scales for appeal. There will be no separate costs in the application.

Foster, J.

I agree.