Patna High Court
Mrs. Hanna Estellee Dear Christian vs Colin Macgregor Dear Murray on 28 January, 1932
Equivalent citations: 148IND. CAS.305, AIR 1933 PATNA 135
JUDGMENT Jwala Prasad, J.
1. These two applications Nos. 508 and 509 arise out of certain proceedings in Title Mortgage suit No. 10 of 1928, instituted by the petitioner, Mrs. Hanna Estellee Dear Christian, wife of Herschell Dear Christian of Chupraon Factory in the; District of Monghyr. Mrs. H.E.D. Murray executed a mortgage bond for Rs. 9,900 in favour of the petitioner and Miss Effie Murray, her daughter, on May 10, 1922. After lapse of due date which was May 10, 1923, a mortgage suit was instituted on February 21, 1928, by the petitioner and Miss Effie Murray. They obtained a preliminary decree on February 21, 1929, for Rs. 25,038. Before the decree was made final an application under Section 151 and Order XLVII, Civil Procedure Code, was made on August 25, 1929, by the petitioner asking the Court to convert the mortgage decree into a money decree on the ground that she discovered on June 10, 1929, that the mortgaged property was already transferred by a deed of gift in 1862 by Mr. Herschell Dear; father of Mrs. Murray, grandfather of the plaintiff, giving a life estate to his daughter Mrs. H.D. Murray and the remainder in equal halves to his surviving children and hence the mortgage was nugatory. A miscellaneous case was started subsequently and a compromise petition was filed by the parties on December 7, 1929. This petition was put up on December 14, 1929 and the Court recorded the following order:
Let the case and suit be dismissed in terms of compromise.
2. Under the terms of the compromise the petitioner, Mrs. H.E.D. Christian, was to get from the defendant, Colin Murray, a sum of Rs. 9,250 in full satisfaction of her share of the claim in suit, the payment whereof was secured to her by defendant, Colin Murray, having made over to Mr. Leslie, Government promissory notes of the face value of Rs. 28,000 who was to hold the same for three months after the expiry of which he was to sell the said promissory notes or so much of the same as might be necessary to satisfy the said sum of Rs. 9,250 or any part thereof that might have remained unpaid at that time. The claim of the other decree-holder, Miss Effie Murray, was already satisfied by the defendant Colin Murray by giving her a promissory note in satisfaction of her share in the claim and therefore she was not a party to this compromise. The petitioner, Mrs. H.E. Christian states that in the terms of the compromise petition she demands from Mr. Leslie the promissory notes but instead of giving, the promissory notes to her he made it over to Colin Murray and the petitioner then made repeated demands from Colin Murray to pay the decretal amount but failed to realize the same. Consequently she asked her Pleader to take out execution against Colin Murray. On May 20, 1930, the copy of the order-sheet was obtained which diseased as stated in the order recorded in the order-sheet referred to above that the suit was dismissed and not decreed. Therefore on May 29, 1930, she made an application to the Court under Sections 151 and 152, Civil Procedure Code, for amendment of the order. On August 25, 1931, the Court rejected the application upon the ground stated to be in the following terms:
There was no prayer in the compromise petition dated December 7, 1929, to decree the suit. Under the compromise petition promissory notes of the value of Rs. 28,000 were made over to Mr. Leslie as security for the payment of Rs 9950 which according to the compromise was payable by the opposite party to the applicant: and in the event of default, Mr. Leslie was to sell the Government promissory notes deposited with, him or so much thereof as might be necessary; and out of the proceeds of the sale the money was to be satisfied and Mr. Leslie was to return the remaining Government promissory notes and any cash balance in his hands to the opposite party So under the compromise there was no relief to be granted by the Court and there was nothing to be done by the Court for the realization of the amount; Government promissory notes having already been deposited with Mr. Leslie and it was he who Was to sell them in the event of default in the payment of the money. Thus the Court was. I think, right in passing an order dismissing the suit and so there is no ground for amendment of the order.
3. In short the Court below justifies the order dismissing the suit upon the ground that there was no prayer in the compromise petition to decree the suit, nor was there any relief to be granted by the Court because the security in the shape, of promissory notes of the face value of Rs. 28,000 was deposited with Mr. Leslie for payment of Rs. 9,250 who was to sell the same and pay the said amount to the petitioner. Now for the reason given by the Court below the words in the order "Let the case and suit be dismissed in terms of compromise" are also, not justified. The Court says that there was no prayer, in the compromise petition to decree the suit, but there was no prayer to dismiss the suit. Therefore the order complained of is bad for the very reason stated by the Court. Now it is better to set out the terms of the compromise petition in toto in order to find out what the Court should have done in the circumstances of the present case. The compromise petition states:
That your petitioners have come to a settlement of all matters in question in these suits in terms of their letter to Mr. K.M.M Leslie dated December 6, 1929, a copy of,, which is annexed hereto and that your petitioners desire that these suits be recorded as compromised on the terms and conditions contained in the said letter Your petitioners therefore pray that a compromise be recorded accordingly. And your petitioners shall ever pray (Sd.) H.E. Christian Sd.) C.M.D. Murray.
4. As already stated one of the decree-holders, Miss Effie Murray is not a party to the compromise because her claim was already satisfied. If the Court was to dispose of the suit in terms of the compromise as contended for by the Court below the order that the Court should have passed was that the compromise be recorded and the suit disposed of as compromised on the terms and conditions contained in the said letter of Mr. Leslie,
5. At the very outset it must be stated that a mere order in the order sheet recording "that the case and suit be dismissed in terms of compromise" is not the disposal of a suit under the Civil Procedure Code which can only terminate in accordance with the rules set forth in Order XX, Rule 1, which says:
The Court, after the case has been heard, shall pronounce judgment in open Court, either at once or on same future day, of which due notice shall be given to the parties or their Pleaders.
6. It also requires that a decree shall be prepared and that the date on which judgment was pronounced. The words "decree", to my mind, is often misunderstood. The order in the decree might give some relief to the plaintiff or might disallow the relief claimed altogether but the Court has to prepare a decree whether the claim be allowed or dismissed. In General Rules and Circular Orders Civil Vol. 1, Chapter 5, Rule 11, exception is made in this respect and in certain cases no decree need be prepared. That rule says:
in suits for money including suits upon mortgage, in suits for specific movables, in suits for accounts and in suits for arrears of rent, no decree need be drawn up if: (1) neither party has to recover any thing unless the Judge otherwise directs; (2) the claim is satisfied after judgment but before the decree is drawn up.
7. This is the only exception where no decree need be prepared and the reason is obvious. If neither party has to recover anything no decree is prepared and similarly it after the judgment the decree is satisfied no decree is necessary. Was this a case coming under any of the aforesaid clauses (i) and (ii), Rule 11? This leads us to the consideration of what were the terms of the compromise. These terms have been set forth in the letter of both parties--plaintiff and the defendant to Mr. Leslie which forms part of the compromise petition. That letter of December 6, 1929, runs as follows:
We have this day and in your presence settled the above suit on the following terms: Miss Effie Murray has already accented from the defendant a promissory note for an amount in full satisfaction of her share in the claim in suit
8. This would come under Clause (ii), Rule 11 and no decree need be prepared so far as the claim of Miss Effie Murray is concerned for her claim has already been satisfied. As regards the remaining petitioner and defendant, Colin Murray the letter says:
I, Mrs. H.E. Christian, agree to accept and I Colin Murray, the defendant, agree to pay the sum of Rs. 9,250 in full satisfaction of Mrs. Christian's share of the claim in suit, the payment of the said sum of Rs. 9,250 to be secured to me, Mrs. Christian, in the following way: I, Mrs. Christian agree to give Mr. Colin Murray three months time from this date to pay me the amount in cash; (b) as security for such payment at three months from date J, Colin Murray, have handed over this day to Mr. Leslie, Government promissory notes of the three percent loan of the par value of Rs. 23,000 to be held by Mr. Leslie for three months from date as such security, the interest in the meanwhile to be payable to me, Colin Murray, on presentation of the notes by Mr. Leslie at the Monghyr Treasury; (c) at the expiry of the said term of three months should this said sum of Rs. 9,250 or any part of the same remain unpaid Mr. Leslie will sell the said deposited Government promissory notes or so much of the same as may be necessary, and out of the proceeds of sale satisfy the sum due and restore the remaining Government promissory notes and any cash balance in his hands, to me, Colin Murray.
9. Now the Court has misapprehended the terms and the effect of the compromise petition. This agreement is entirely between the plaintiff, Mrs. H.E. Christian, and the defendant, Colin Murray to this Mr. Leslie is not a party. The plaintiff agrees "to accept" and the defendant agrees "to pay" Rs. 9,250. Three months' time was given by the plaintiff to defendant Colin Murray to pay the said sum to the plaintiff. So under the terms of the compromise petition the defendant had to pay to plaintiff, Mrs. H.E. Christian the sum of Rs. 9,250 and not Mr. Leslie as the Court below thinks. For the payment of the said sum it was Mr. Colin Murray who gave security by depositing Government promissory notes with Mr. Leslie and he continued to be the owner of the Government promissory notes and appropriated the interest thereof. Now let us see if the last Clause (c) changes the position and exonerates defendant, Colin Murray from the liability to pay the sum of Rs. 9,250 to the plaintiff since the liability is transferred from the plaintiff to Mr. Leslie. Under that clause in the event of the said sum of Rs. 9,250 or any part thereof remaining unpaid after three months Mr. Leslie was to sell the Government promissory notes to pay up the claim. The clause is significant on the point showing the continuity of the liability of defendant Colin Murray for it implies that Collin Murray was to pay and was expected to pay the said amount or a portion of it and in the event of his not being able to pay, Mr. Leslie was to sell the Government promissory notes. So the defendant's liability does not cease and is not in any way transferred to Mr. Leslie who is not a party to the compromise. The Court does not deal with this point. The Court below is therefore wrong in holding that the liability of the defendant ceased and it was Mr. Leslie who was made liable to pay the Government promissory notes. Even if the Courts wanted to avoid the use of the word "decree" as it was not found in the compromise petition the Court could have and was bound to prepare a decree embodying the terms of the compromise petition or annexing the same as part of the decree and could have used the words:
the case disposed of in terms of the compromise petition which are made part of the decree.
10. But to my mind there is no doubt that the plaintiff petitioner was entitled to a decree in terms of the compromise petition and after that failing to realize the money after three months from Mr. Leslie by sale of the promissory notes she was entitled to realize it by executing the decree against the principal defendant Colin Murray. The case comes well within Sections 151 and 152, Civil Procedure Code and the Court below committed an error of jurisdiction in not amending the order. It must also be noticed that the Court has passed no order as to costs while recording the order on December 14, 1929, dismissing the suit in terms of the compromise petition. The Court did not pass any order as regards the costs of the suit as to which the compromise petition was silent. It was the discretion of the Court to allow or not to allow the costs, but the Court was bound to pass order with regard to it under the Civil Procedure Code. The order of the Court was incomplete even in case of dismissal of the suit and a decree ought to have been prepared showing the amount of costs and giving direction in respect thereto even where each party had to bear its own costs.
11. The learned Advocate on behalf of the opposite party (Mr. Colin Murray) cited the case of Brojendra Kumar Das v. Gobind Mohan Das. That case is distinguishable from the present one. In that case the plaintiffs filed a compromise petition and asked for dismissal of the suit. Some of the defendants wanted to be added at this stage as plaintiffs to continue the suit and to obtain a decree in their favour; the other defendants objected to the dismissal of the suit. The Court held that at that stage they could not be transferred from the category of defendants to that of the plaintiffs and to continue the suit and ordered that under the terms of the compromise petition the suit should be dismissed. In this case as observed above the parties did not pray in the compromise petition that the suit should be dismissed. They rather wanted that the suit be decreed in effect upon the terms set forth and detailed in the letter of Mr. Leslie annexed to the compromise petition as part thereof. Reference may also be made to Order XXII; Rule 3, Civil Procedure., Code, which says; that; when a compromise is proved to have been arrived at between the parties the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith so far as it related to the suit. Now the order "let the case and suit be dismissed in terms of compromise" has not in any way complied with the aforesaid statutory provision. The Court has not ordered the compromise to be recorded which was expressly prayed for in the petition. The Court has not passed a decree in accordance with the compromise petition so far as it related to the suit between the petitioner Mr. H.E. Christian, and the defendant, Mr. Colin Murray. The words in the rule are mandatory and if I may say so, have advisedly been made to be so. Sometimes it is difficult to understand the terms of the compromise between the parties and therefore it is necessary that the entire compromise should be recorded. The Court has not referred to the section at all in passing the order which is the subject-matter of revision.
12. The result is that the order of the Court below dated August 25, 1931, is set aside and the order dated December 14, 1929, be amended by decreeing the suit in terms of the compromise petition which should be embodied in the decree as part thereof. The revision petition is allowed with costs in both the Courts: hearing-fee Rs. 48 in each case. The compromise does not speak of any costs and the parties apparently did not want anything as costs. The direction will be that each party will bear its own costs. Let a proper decree be prepared capable of execution. It is difficult to decipher the word in the order sheet in question which is said to be "dismissed," The Court has only commenced the word with "d" and then drawn a straight line and curved it at the end like "d" So it may the beginning and one at the end. The intermediate space between the two letters is simply a straight line. It is difficult to say whether it is "decreed" or "dismissed." What is noticeable is that the Court writes a legible hand in the order sheet and in this order also the words are all distinct and readable except the word which is said to be "dismissed" How this d--d has been like that is very difficult to understand except that the Court was doubtful unless the order should be to dismiss or to decree. Another thing noticeable in this case is that the table of contents of the suit did not note the compromise petition and it seems that it has been added subsequently as No. 39 shows the petition of compromise. But the paper attached to the record and sent with it to this Court is not the petition of compromise but the letter to Mr. Leslie which is an annexure to the compromise petition. The certified copy of the compromise petition was taken by the parties about September, 1931 and soon after that their revision petition was filed here. Let the compromise petition be found out and made a part of the suit record.