Municipal Committee Ujjain vs Ram Shanker

Chaturvedi, J.—This is an appeal directed against the judgment and decree of the Additional District Judge, Ujjain, by which he held, that the execution of a decree by the decree-holder is barred by the provisions of Section 48 CPC as the application for execution was made more than 12 years after the date of the original decree passed on 6-10-1928.

If the decree-holder had sought for execution of the decree of 1928 there is no question that an application would have been barred by limitation. But it appears in this case that in the execution of the original decree, in which there were more than one execution proceedings, at one such proceeding, the parties came to terms and in execution case No. 468 of 1991 a compromise was entered into by the parties and certified by the Court on 16-2-1938 and the judgment-debtor promised to satisfy the remaining claim by instalments. It was agreed that in default of payment of instalments on specified date the decree-holder would be entitled to realise entire sum by execution. When the execution application No. 264 of 1998 was filed the judgment-debtor objected that the decree was incapable of execution by the 12 years rule. This objection was overruled and the appeal was also dismissed on 22nd Dec. 1943. Then another execution application was filed on 25-7-1946 and it was mentioned that it was for the revival of the execution case No. 264 of 1998 and the judgment-debtor again raised the same objection.

This objection was overruled by the executing Court but in appeal the learned Additional District Judge, Ujjain, placed reliance on - ''Zaheer-ud-Din v. Mt. Amtur Rasheed AIR 1944 Lah. 106 for the proposition that an order of the Court which does not direct the payment of money at a certain date or at recurring periods but merely takes notice of and refers to the compromise to pay the decretal amount by instalments does not come within Section 48 Sub-clause (1)(b) and cannot give rise to a fresh starting point of limitation. It had been held in this Lahore case that in the absence of any direction, by the Court to the parties to receive and pay the money in accordance with the fresh contract arrived at between them, the order cannot be construed so as to contain a direction in regard to the payment of money at any date different from what was provided toy the decree.

The same view had been held in - Gobardhan Das Vs. Dau Dayal But after the Privy Council ruling in - AIR 1939 80 (Privy Council) it was herd, by a Division Bench of the Allahabad High Court in - Chhatra Pati Pertab Bahadur Sahi Vs. Hari Ram Marwari, that, a compromise between the decree-holder and the judgment-debtor entered into in the course of the execution proceedings, which was duly recorded is enforceable in execution proceedings and that the period of twelve years would be computed from the date of the default of payment of the instalment.

Subsequent to this ruling several Courts have held that once the Court accepts the compromise and passes an order striking off the execution proceedings the Court intends that the decretal amount should be payable by instalments and the order which it passes striking off the execution proceedings is in essence and substance an order made u/s 48 of the CPC which extends the period of limitation. So there is a conflict of opinion on the point.

I remember of a case - ''Bal Kishan v. Laxman Rao'' Civil Misc. Appeal No. 12 of 2004 (Madh. B.) in which I, as a Judge of the Gwalior State High Court, referred this point to a Division Bench for determination of this question. The Division Bench (Dixit C.J. and myself) dissented from the proposition enunciated in-''Zheer-ud-Din v. Mt. Amtur Rasheed'' AIR 1944 Lah 106 and relying on certain observations made by their Lordships of the Judicial Committee in - AIR 1939 80 (Privy Council) concurred in the views propounded by the Allahabad High Court in three cases in 1940. These cases are reported at pages 107, 270 and 423 of 1940 Vol. of All India Reporter - 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, . Subsequently it appears, the same view was taken by Justice Rege in - ''Punam Chand v. Jagannath 1949 M B.L.R. 95 in which it was held that if the compromise contained any operative words, those words become an order of the executing Court and that being so, they would come within the intention of the word ''any subsequent order'' contained in Section 48,'' Sub-clause (1)(b) Code of Civil Procedure.

On a review of these cases I come to the conclusion that where original decree has been converted by compromise into a decree for payment by instalments and the decree-holder cannot execute the decree until the judgment debtor has defaulted, the decree-holder''s application though after 12 years from the date of the original decree, but within three years of the last payment by the judgment-debtor under the compromise, should be held to be within time. The judgment-debtor, in my opinion, is also precluded from contending that the mode of payment of the decree by instalments agreed to by him is not binding on him.

In this view of the matter in my judgment the learned Additional District Judge, Ujjain, was clearly in error and his order roust be set aside, I therefore hold that the execution was within limitation.

I would therefore allow this appeal with costs, set aside the judgment and the decree passed by the Additional District Judge Ujjain, and, restore the order of the City Sub Judge Ujjain so far as the point of limitation is concerned.