Sri Narayan Singh and Others vs Posan Singh and Others

Chatterji, J.—The appellants (of whom Nos. 2 and 3 are minors), in execution of a mortgage decree obtained by them against the respondents for about Rs. 2577, purchased the mortgaged property on 19th April 1938 for Rs. 1175. On 18th May 1938 the respondents-judgment-debtors made an application under Order 21, Rule 90, Civil P.C., for setting Aside the sale.

In the proceeding under Order 21, Rule 90, the parties filed a compromise petition on 12th November 1938, which was accepted by the Court. The compromise provided that if the judgment-debtors paid the decretal dues amounting to Rupees 2,577-6-6, besides future interest at 6 per cent, per annum, to the decree-holders by 30th Baisakh 1347 Fasli, 21st May 1940, the sale would be set aside and that, otherwise, the sale would stand. On this compromise the Court passed the following order on the game day:

The compromise be recorded and the sale be confirmed and the execution case dismissed on full satisfaction subject to the condition that if the sum of Rs. 2,577-15-6 will be paid to the decree-holders auction purchasers by 30th Baisakh 1347, the sale would be set aside.

On 18th May 1940, the judgment-debtors filed an application under Order 21, Rule 2, Civil P.C., stating that on 30th April 1940, they executed a sale deed for Rs. 2900 in favour of the decree-holders with their consent in full satisfaction of the decree. They, accordingly, prayed that the sale might be set aside in terms of the compromise order, dated 12th November 1938. The decree-holders resisted this application on the grounds that it was not maintainable under Order 21, Rule 2 and that they had no knowledge of the sale deed.

The Munsif upheld both the objections taken by the decree-holders and rejected the judgment-debtors'' application under Order 21, Rule 2. On appeal by the judgment-debtors, the Subordinate Judge allowed their objection, holding that it was maintainable, and also that the sale deed had been executed with the knowledge and consent of the decree-holders. Hence, this appeal by the decree-holders.

This appeal may be disposed of on two very short and simple grounds, neither of which appears to have been raised in the Courts below. As I have already stated, two of the decree-holders are minors. The Court cannot give effect to a compromise which has been entered into by the guardian of the minors without its previous sanction. Even assuming that the judgment-debtors'' version be true, namely, that the decree-holders entered into a fresh compromise with them, it is not suggested that the sanction of the Court was obtained by the guardian of the minor decree-holders for the purpose. That being so, the Court cannot give effect to the alleged compromise. I may also observe that the terms of the alleged compromise, on the very face, appear to be so unfavourable to the minors that no Court would have granted sanction to their guardian to enter into it. By the auction sale the decree-holders had purchased 17 bighas of land for Rs. 1175. The sale deed, which was for Rs. 2900, was in respect of 10 bighas only. The compromise dated 12th November 1938, clearly provided that the sale would be set aside only on condition of the judgment-debtors paying in cash the entire decretal amount with future interest. Upon these facts it would be impossible to hold that the compromise was for the benefit of the minors.

The order passed on 12th November 1938, which I have already quoted, shows that the sale was confirmed, though subject to certain condition. The judgment-debtors now ask that the sale should be set aside because the terms of the compromise have been complied with. Whatever might be the actual terms of the compromise, the Court passed an order confirming the sale which was liable to be set aside only in one event, namely, that if the judgment, debtors paid in cash the sum of Rs, 2577-15-6 to the decree-holders by 21st May 1940. Admittedly, this condition has not been complied with. Consequently, the sale cannot be set aside. Mr. Mullick contends that the order passed on the compromise was not exactly in terms thereof and was, therefore, wrong. In the first place, it is difficult to hold that the order was wrong. Order 21, Rule 92, Civil P.C., provides:

Where no application is made under Rule 89, Rule 90 or Rule 91 or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute.

Here, there was an application under Order 21, Rule 90 which was disposed of on compromise. The Court could not allow an application under Order 21, Rule 90 unless the conditions laid down in that rule were satisfied. The parties compromised the matter and upon the terms of the compromise it was open to the Court to confirm the sale subject to the condition stated above. In the second place, even assuming that the order was wrong, it could not be set aside except by proper proceeding taken by the parties. No such proceeding having been taken by the judgment-debtors, it is not open to them now to say that that order was wrong. That being so, the order cannot be set aside when the condition mentioned therein has not been admittedly fulfilled.

On these grounds, I think the appeal should succeed. I would, accordingly, allow the appeal, set aside the decision of the lower appellate Court and restore that of the trial Court. The appellants would be entitled to costs of this Court as well as of the lower appellate Court, hearing fee in the lower appellate Court, Rs. 16.

ROWLAND, J.

I agree. The failure of the Subordinate Judge to notice how ruinous a bargain the decree-holders were alleged to have entered into is surprising, this being a matter that certainly ought to have been considered by him in estimating the probability of the truth of the story set up by the judgment-debtors. It is also surprising that neither of the Courts below noticed that the agreement sought to be enforced was unenforceable under Order 32, Rule 7, Civil P.C.