Case: Kok Singh Vs. Deokabai

One Deojibhai executed a sale deed on December 30, 1950 in respect of the property in question in favour of the appellant for a sum of Rs. 12, 000. No part of consideration was paid at the time of the execution of the sale deed. The appellant promised to pay the amount by May 21, 1951 and covenanted that in case of non-payment, the amount due would be charge upon the property sold. After the execution of the sale deed, the appellant was put into possession of the property and he paid Rs. 3, 100 in three instalments. Deojibhai died in 1955 leaving his widow, the respondent, and a son who died subsequently leaving his widow Manibai. Manibai filed a suit in 1956 in the Bombay City Civil Court against Deokabai, the respondent, claiming a share in the property left by her father-in-law, Deojibhai. This suit was compromised and Deokabai was appointed receiver of the estate of Deojibhai with a direction by the Court to realise his assets and to pay a certain amount to Manibai. Deokabai, the respondent, filed the suit from which the appeal arises, on the basis that the appellant defaulted to pay the full purchase money of the property and that she was entitled to the same with interest.2. The appellant contended that the charge could not be enforced against the property as it formed part of this occupancy holding and that, besides the sum of Rs. 3, 100 he has made other payments totalling Rs. 9, 500. The trial Court found that no decree could be passed for enforcing the charge against the property as it was held in occupancy right the appellant, but the court gave a personal decree against the appellant for Rs. 21, 375. The appellant appealed against the decree to the High Court. The Court found that the respondent was entitled to enforce the charge on the property and granted a decree on that basis, but negatived the claim of the respondent for a personal decree against the appellant on the ground of limitation. In other respects, the decree of the trial Court was confirmed. It is against this decree that the present appeal, by certificate, has been filed.

Reasoning:
We think the High Court was right in its conclusion as Section 12 of the Central Provinces Tenancy Act, 1920, which contained the prohibition, had been repealed before the decree wasare unable to accept thisOrder 41, Rule 33 of the Civil Procedure Code, the High Court was competent to pass a decree for the enforcement of the charge in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree.Therefore, we hold that even if the respondent did not file any appeal from the decree of the trial Court, that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge.8. There is no substance in the contention that all the payments made by the appellant have not been given credit to by the respondent in view of the concurrent findings of the courts.