TMI Blog1966 (9) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... of the business Capri Restaurant approached the plaintiff Luxmi Chandra for a temporary accommodation loan of ₹ 60,000 for running his business, and the plaintiff lent and advanced the said sum of money on a deed of hypothecation and pledge, dated February 2, 1961 of the assets of the business Capri Restaurant and the goodwill thereof. By the deed aforesaid, it was, inter alia, agreed that defendant No. 1 Trilok Chand Kapur would repay the debt by June 1, 1961, together with interest at the rate of 9 per cent per annum and costs, charges and expenses, as between attorney and client, which plaintiff might incur for recovery. The defendant Trilok Chand Kapur did not pay in terms of the deed. Hence the suit. In the said suit, Dayaram, the father of the plaintiff was impleaded as defendant No. 2, because the defendant No. 1, as plaintiff, had earlier filed a suit (being Suit No. 843 of 1961) against the said defendant No. 2 alleging that his son, the present plaintiff, was benamidar for the father, the latter being bound by a separate agreement with the present defendant No. 1 appellant in the matter of the advancement of the sum of ₹ 60,000 No relief, however, was cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as aforesaid The form of the Sale Deed has been agreed upon between the parties and a copy thereof is annexed herewith and is to be treated as a part of these terms. 5. The defendant No. 1 will make over possession of the said business of Capri Restaurant with all its assets and goodwill to the defendant No. 2 simultaneously with the execution of the Sale Deed Inventory as a preliminary for taking over possession will commence immediately after payment of the mm of ₹ 10,000 as mentioned in Clause 3(i) hereof and defendant undertakes to give all facilities for the same. 6. The defendant No. 1 will withdraw his name from the joint tenancy held by him with defendant No. 2 in respect of premises No. 15/6 Chowringhee Road, Calcutta, and leave the same in exclusive enjoyment and possession of defendant No. 2. 7. Each party will pay and bear his respective costs. The defendant No. 2 paid all sums of money, excepting a sum of ₹ 29,000 (admittedly not ₹ 30,000 as in the tabular statement) In these circumstances, the application for execution of the consent decree was made by the defendant No. 1 appellant Trilok Chand Kapur against Dayaram Gupta, defendant No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orming the contract between them. A contract has been made between the parties by which the defendant No. 1 and defendant No. 2 agreed to have a transaction in regard to the business known as 'Capri Restaurant' The contract provided payment of the purchase price Some portion of purchase money was to go to the satisfaction of the decree-holder and the balance is payable by defendant No. 2 to defendant No. 1. In my opinion payment sought to be executed does not fall within the executability of the decree. I am therefore unable to grant any relief. 6. On behalf of the appellant it was contended that the operative portion of the decree contained the provision for payment of ₹ 30,000 by Dayaram Gupta, defendant respondent No. 1 and that the parties agreed that the said term must be carried into effect That made the terms as between defendant Trilok Chand and defendant Dayaram enforceable by process of execution An executing Court, it was contended, must not go behind the decree and refuse to execute it. 7. Now, it is well settled that an executing Court cannot go behind the decree. A Full Bench of this Court observed in Gorachand Holder's case AIR1925Cal907 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part which was the subject matter of the suit, or it could introduce the agreement in the schedule to the decree, but in either case the operative part of the decree would be properly confined to the actual subject matter of the then existing litigation, the decree taken as a whole would include the agreement This is in fad what the decree did in the present case. It may be that as a decree it was incapable of being executed outside the lands in the suit but that does not prevent it being received in evidence of its contents. It is true that the observations were made by his Lordship in a context different from the context of executability of the decree--the point for decision being whether the provisions of Section 49 of the Registration Act affected the petition of compromise in the suit. Nevertheless the observations of Lord Buckmaster quoted above, including the obiter dietum about the non-executability of extraneous matters in a decree, have been always followed by this Court as laying down the correct law. (Vide, for example the cases of Makhanlal Samadder v. Khagendra Nath Chakravarty AIR1936Cal446 ; Arjun Kapali v. Asvini Kumar AIR 1926 Cal. 286. 8. I need, however ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount due to the plaintiff and in default of instalments he would be entitled to realise the amount by the sale of the property by execution of the decree. In that context Sulaiman, C. J. observed: It seems to us that the expression, 'so far as it relates to the suit' is somewhat wider than the expression 'so far as relates to so much of the subject matter of the suit as is dealt with by the compromise'. It is clearly possible to conceive of matters which may not, strictly speaking, be the subject matter of the suit itself as brought and vet they may relate to the suit, No doubt it is the duty of the Court to see that although the whole of the compromise between the parties is to be recorded the operative portion of the decree is confined to that part only which relates to the suit.... We think that even in cases where the compromise does not strictly speaking relate to the suit and nevertheless the Court decides that it relates to the suit and incorporates it into the operative portion and passes a decree in terms of it, the decree is not a nullity and not one passed without jurisdiction, but would be binding upon the parties to the decree and its validity ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uite unrelated to suit The context of fact, in which the observation was made in our respectful opinion, justified the aforesaid construction of the compromise decree. 10. The third case, on which the appellant relied, was a judgment of the Andhra Pradesh High Court in Seth Harak Chandas v. Hyderabad State Bank, AIR1960AP56 . In that case, a claim for recovery of money, secured by mortgage was decreed on compromise, under which, apart from the mortgaged property, certain other properties were also given by way of further security because the original mortgaged property was not sufficient to meet the claim of the plaintiff. On this decree being executed, there was an objection taken to the effect that the properties subsequently mortgaged by wav of further security were not the subject matter of the suit and the Court was not justified in passing a decree to that extent and the decree embodying the terms of the compromise, under Order 23, Rule 3 of the Code, would only amount to an agreement enforceable by a regular suit and not by way of execution Negativing the contention, their Lordships held that such an objection should not be allowed to be raised in execution proceedings bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crees where the obligations imposed on each side are distinct and severable and in such a case each party might well be left to its own execution. But when the obligations are interlinked so they cannot be separated, any attempt to enforce performance unilaterally would be to defeat the directions in the decree and to go behind them, which of course an executing court cannot do. This case is not a direct authority on the proposition how far extraneous matters, incorporated in a compromise decree, may be enforced by execution. The case, so far as we could understand, was cited in support of the argument that an executing Court cannot go behind the decree or direct enforcement of a contract unilaterally, by process of execution. The case does not lay down the broad proposition that even if certain terms of compromise do not relate to the suit and are wholly extraneous thereto, even then the same may be enforced by process of execution. 12. This brings us to the end of our examination of the case-laws cited. Having done so, we do not think that anything else remains for us to do than to examine the frame of the suit, the reliefs claimed and the reliefs allowed by the decree on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of a charge on the business Capri Restaurant created in his favour, (iii) under the compromise decree, the plaintiff's claim for money was upheld and satisfaction thereof was provided out of the consideration money to be paid by the pro forma defendant Dayaram to the principal defendant Trilok Chand, under a separate agreement for purchase of Capri Restaurant by the former from the latter. This is the only nexus, if at all one of the transaction to take place between the pro forma defendant Dayaram and the principal defendant Trilok Chand on the one hand and the plaintiff on the other. In our reading, the transaction to take place between the pro forma and the principal defendant was wholly extraneous to the frame of the suit, the relief claimed and the relief allowed. The fact that instead of the principal defendant Trilok Chand paying up the judgment-debt to the plaintiff, out of the consideration money for sale of Capri Restaurant to the pro forma defendant, the pro forma defendant took upon himself the duty of paying up the plaintiff made the least difference to the plaintiff himself. It may be that if the pro forma defendant had not paid him, the plaintiff decree-hol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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