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Sheo Sahai vs Kashi Prasad

High Court Of Judicature at Allahabad|18 December, 1896


JUDGMENT John Edge, Kt., C.J. and Blair, J.
1. The respondent on the 7th of May 1891, obtained a decree for sale under Section 88 of the Transfer of Property Act, 1882, against the appellant here. Subsequently to the making of that decree, and after expiration of the time for payment limited by the decree, the respondent obtained an order under Section 89 of that Act. Later still, after the making of that order, the parties agreed that the appellant here might pay by instalments, part of the consideration for that agreement being an increase by about Rs. 2,000 of the decretal debt and certain provisions as to the payment of additional interest. The Court sanctioned the agreement under Section 257-A1 of the Code of Civil Procedure. The respondent now seeks to have execution of the decree and the agreement, or rather to have execution for the amounts mentioned in the agreement and for the additional interest mentioned in the agreement. The Court below granted the application, and from that order this appeal has been brought.
2. Mr. Roshan Lal, for the respondent, has contended that an agreement of this kind which has been sanctioned by the Court can be enforced by execution as if it were a decree, and in fact that it varies the decree. He has relied on Ameer-un-nissa Khatoon v. Meer Mahomed Hossein 2 C.L.R. 143 and on Sita Ram v. Dasrath Das I.L.R. 5 All. 492. The case in Calcutta decided nothing of the kind; in fact it left the question open to be, decided subsequently whether the decree-holder could enforce his decree for anything not specifically decreed. The Full Bench case in this Court certainly supports to some extent Mr. Roshan Lal's argument. It decided that, where there was a sulahnamah relating to a decree which had been sanctioned under Section 257-A of the Code of Civil Procedure, the decree might be executed in accordance with its provisions. In that case the sulahnamah imposed an additional burden on the judgment-debtor not imposed by the decree. We doubt if that view of the law would be considered a good one at the present day. Fortunately, it does not bind us in this case, for, although the decree in that case was one in enforcement of a hypothecation by sale, the decree was made in 1881, and consequently was not a decree for sale under the Transfer of Property Act, 1882.
3. Section 210 of the Code of Civil Procedure enables a Court after passing a decree for the payment of money, on the application of the judgment-debtor and with the consent of the decree-holder, to order the amount decreed to be paid by instalments on such terms, as to the payment of interest, attachment of the property or otherwise, as the Court thinks fit. Such an application must be made within six months of the date of the decree. By the same section it is enacted that, "save as is provided by that section and Section 206, no decree shall be altered at the request of the parties." That section does not apply to a decree for sale, which is not a decree for money, and which can only be made under the Transfer of Property Act, 1882, since that Act came into force. It is obvious that, where a decree for sale is made under Section 88 of the Transfer of Property Act, no subsequent agreement between the parties can increase the amount for which the property is to be sold in case default of payment is made. Under Section 88 the decree must direct that the proceeds of the sale, after defraying there out the expenses of the sale, shall be paid into Court "and applied in payment of what is so found due to the plaintiff, and that the balance, if any, be paid to the defendant or other persons entitled to receive the same." The words "what is found due to the plaintiff" refer to what is found due in the account or by the declaration of the Court mentioned in Section 86. The order under Section 89 can only be an order that the property, or a sufficient part thereof, be sold and that the proceeds of the sale be dealt with as is mentioned in Section 88. There is no provision in Section 88 or Section 89 such as those contained in the proviso to Section 87, which is the section relating to suits for foreclosure, or in Section 931, which is the section relating to suits for redemption. We can only come to the conclusion that a decree for sale under Section 88 of the Transfer of Property Act can only be executed as provided by that Act, that is, for the amount decreed or found in account to be due, and that the order for sale cannot, except with regard to any additional costs which may be provided for by Section 94, extend in any way the liability of the judgment-debtor or his property under the decree. All that this decree-holder is entitled to under the order under Section 89 is to have his decree executed for the amount decreed and the expenses of the sale and for any additional costs which may be incurred under Section 94. He cannot have execution of the agreement by which time was given. As the application was one for execution of the agreement, we allow this appeal and dismiss the application with costs.
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Sheo Sahai vs Kashi Prasad


High Court Of Judicature at Allahabad

18 December, 1896
  • J Edge
  • Kt
  • Blair