Case: Parbati Devi and Others Vs. Mahadeo Prasad Tibrewalla

On August 15, 1925 one Indera Chand Kejriwal instituted on the original side of the Calcutta High Court a suit on the basis of a mortgage against Ram Chander Saragogi, Sewbux Saraogi and Tejpal Saraogi for recovery of Rs. 38, 000/- as principal and Rs. 6, 082.8 annas as interest. By an equitable mortgage the property mortgaged consisted of two houses (1) No. 126, Harrison Road and (2) No. 13/2, Syed Salley Lane in the town of Calcutta. On November 26, 1926 a consent decree was passed for a sum of Rs. 41, 000/- together with interest thereon @ 6.3/4% per annum. On failure of the judgment- debtors to pay the amount the mortgaged properties were to be sold. On 3rd of January, 1929 it was ordered and decreed that the mortgaged property be sold. On 16th April, 1934 Indera Chand Kejriwal by a deed of assign ment assigned his interest in the decree to Mahadeo Prasad Tibrewalla, the respondent in this appeal. On the application of the assignee decree-holder an order was made on the 8th May, 1934 substituting his name in place of the original decre e holder and recording some terms of settlement between him and the judgment-debtors. The amount with interest quantified on that date was Rs. 60, 023.12 annas which was to carry an interest of 6.3/4% per a nnum. Subsequently on an application of the decree holder one Anandilal Poddar was appointed on the 14th June, 1938 a receiver of rents and profits of the mortgaged properties. A sum of Rs. 10, 000/- was paid to the decree holder on the 7th September, 1939 towards part satisfaction of the decree. On the death of Ram Chander Saraogi, one of the judgment-debtors, by order dated the 7th August, 1945 Smt. Parbati Devi, Ananta Kumar Saraogi and Suraj Kumar Saraogi, his heirs and legal representatives, were substituted. They are appellant Nos. 1 to 3 in this appeal.No further payment was made to the decree holder and eventually a consent order was passed by the Court on the 17th June, 1953 on the basis of the terms of settlement arrived at between the parties which were incorporated in the letter written by the Solicitor of the judgment-debtors to the Solicitor of the decree holder. The terms of settlement are quoted in full in the appellate judgment of the High Court. The salient terms o f the settlement may be stated asThat the total dues on the date came to Rs. 1, 10, 000/-.(2) That Shri Anandilal Poddar, the receiver was to pay Rs. 35, 000/-.(3) That a sum of Rs. 40, 000/- was to be paid by conveying premises No. 13/2 Syed Salley Lane to the decree holder, and,(4) That a sum of Rs. 35, 000/- was to be paid in cash by raising money by execution of an another mortgage of premises No. 126, HarrisonPoddar paid the sum of Rs. 35, 000/-. But nothing further was done by the judgment-debtors pursuant to the settlement arrived at on the 17th June, 1953. Sewbux Saraogi, one of the judgment-debtors, died leaving a Will in which the universal legatee was his daughter Smt. Kapurbai and the sole executor appointed therein was Motilal Jhunjhunwalla, husband of Kapurbai. On the 7th June, 1965 the respondent affirmed a tabular statement for execution of the decree. A learned single judge of the Calcutta High Court dismissed that application mainly on the grounds-(1) that the terms of bargain between the parties recorded on t he 17th June, 1953 were entirely different from the original decree and had the effect of superseding it; the former decree, therefore, was not executable; (2) that the factum of the death of Sewbux Saraogi was not recorded and his heirs were not substituted in the tabular statement. In passing, the learned single Judge also expressed the view that the execution was barred under section 48 of theCode of Civil Procedure. On appeal by the decree holder the Appellate Bench has reversed the decision of the learned single Judge on all the points. Hence this appeal by the judgment-debtors.

Reasoning:
We have no difficulty in rejecting the argument of limitation. All through steps had been taken by the decree-holder. The case was not lying dormant at any point of time for a period of more than 12 years. When in the year 1929 there was an order for sale of the mortgaged properties it appears some payments were made and finally accounts were settled in the year 1934. Thereafter the mod e of execution proceeded by appointment of a receiver. A sum of Rs. 10, 000/- was paid in the year 1939. In the year 1945 steps were taken for substitution of the heirs and legal representatives of Ram Chander Saraogi, one of the deceased judgment-debt ors. Parbati Devi, appellant No. 1, was allowed to take some steps for the satisfaction of the decree. But nothing was done. Eventually a settlement was again arrived at on the 17th June, 1953 for satisfaction of the decree but on the judgment-debtors failure to fulfill the settlement the present proceedings were started by filing the tabular statement on the 7th of June, 1965 well within 12 years of the 17th June, 1953. The point of limitation raised on behalf of the appellants, therefore, must be rejected.A statement had been made in the tabular statement that Sewbux Saraogi, one of the judgment-debtors, was dead. Kapurbai, his daughter along with others were sought to be substituted in his place. Later on it transpired that she was a universal legatee under a will executed by Sewbux Saraogi. She was, therefore, undoubtedly a legal representative competent to represent the estate of Sewbux Saraogi. Even in absence of the substitution of Mot ilal Jhunjhunwalla, the sole executor of the w ill, the execution was not defective. Reference in this connection may be made to the decision of this Court in the case of The Andhra Bank Ltd. v. R. Srinivasan and Others, (1) decision relied upon by the Appellateto the third and the last point it may be mentioned that the settlement arrived at on the 17th June, 1953 was not an altogether renovation of the old decree. The amount due was quantified and the mode of satisfaction was prescribed giving liberty to the judgment-debtors to satisfy the decree by conveying one of the two mortgaged houses and by paying a sum of Rs. 35, 000/- in cash by raising the money by mortgage of the other house. The judgment-debtors did neither . The terms of settlement were silent as to what was to happen on the failure of the judgment-debtors to satisfy the decree in the manner agreed upon. In such a situation it was quite legitimate to assume that the parties intended that the decree holders would be entitled to realise the dues by execution of the original mortgage decree. Reading the terms of settlement in the context of the letter of the Solicitor of the Judgment-debtors it is plain to us that the order dated 17th June, 1953 ha d not the effect of passing a new decree in substitution of the old one. It had merely the effect of giving facility to the judgment-debtors for the satisfaction of the decretal dues. On their failure to do so they were liable to be proceeded with in execution of the original mortgage decree.