Patna High Court
Mt. Bilas Devi vs Bansidhar Sahu on 13 December, 1950
Equivalent citations: AIR1951PAT459, AIR 1951 PATNA 459
Author: B.P. Sinha
Bench: B.P. Sinha
JUDGMENT B.P. Sinha, J.
1. This is a decree-holder's appeal from the decision of the learned Subor dinate Judge of Arrah, dated 8-5-1948, partly allowing objections under S. 47, C. P. C. raised on behalf of the resp Judgment-debtor.
2. It appears that the applt instituted a suit for partition of properties said to have been joint family properties against a number of defts, including deft 5, Bansidhar Sahu, the resp in this case, who happens to be the nephew of her husband. The suit related to many items of immovable property as also of movables, including ornaments & pieces Of furniture & clothing. The matter came up to this Ct on . appeal from an order passed by the Ct below refusing to record a certain compromise. That case was Misc App No. 454 of 19.45. A D. B. of this Ct succeeded in getting the applt, who was then also the apnlt & deft 5 to agree to certain terms of compromise which are as follows:
"1. That Mt. Bilas Devi shall be declared entitled to maintenance at the rate of Rs. 125/-(one hundred & twenty five) a month which shall be payable to her on the 7th of each English calendar month.
2. That the lady shall also get Rs. 5,000/- & the same shall be paid to her by deft 5 at the rate of Rs. 2,000/- a year & the balance of Rs. 1,000/- shall be paid in the third year after the first two instalments have been paid. The first two thousand rupees is to be paid on or before 15-1-1948, the second instalment on or before 15-1-1949, & the balance on or before 30-6-1949. In the event of non-payment of any of the instalments, the lady shall be entitled to realise the whole amount then due by execution.
3. That the lady shall also be paid Rs. 1,400/- on account of ornaments. Rs. 700/- must be paid by the deft 5 on or before 15-7-1947, & the balance of Rs. 700/- on or before the 15-1-1948. In the event of non-payment of the first instalment on the date fixed, the lady shall be entitled to realise the whole of Rs. 1,400/- by execution.
4. That it is also agreed that the lady shall be entitled to live in the house situated in Mahalla Abarpool in the town of Arrah. Neither the lady nor any of the parties to the suit shall be entitled to sell the house during the life time of the lady.
5. That, in the event of these instalments not being paid to the lady, interest shall run at six per cent from the date of default.
6. That the lady is entitled to arrears of maintenance at this rate from 7-4-1945. Respon dents, 6, 7, 9, & 11 are minors. They are not a party to this compromise. They are not affected by this."
3. The matter did not rest there. The two parties aforesaid appeared before the Ct where the suit was pending, & a decree was passed in the suit itself, recording the terms of the com promise aforesaid. As the judgment-debtor, deft 5, did not pay the amounts covered by the terms of the compromise, the decree-holder was com pelled to take out execution, which was num bered as Exen. Case No. 4 of 1948. She claimed a total sum of Rs. 11,079/6/- being made up of the cash amounts mentioned in the terms of the compromise as also interest accrued due thereon plus arrears of maintenance for 34 months at the rate of Rs. 125/- per mensem with interest.
The judgment-debtor filed an objection petn under S. 47 of the Code, contending, inter alia, that the decree-holder was not entitled to realise the several sums constituting her total claim as laid in the execution petn, without having recourse to a separate suit, & that the decree passed in the partition suit was "quite illegal & invalid & inexecutable". The judg ment-debtor further contended in his objection that the decree passed was against law, as laid down in O. 23 R. 3, C. P. C. & as such it was unenforceable. The question was also raised that the decree-holder was not entitled to any inte rest either on the sums of 1,400 or 5,000 or on the amount of maintenance.
4. The learned Subordinate Judge overruled the judgment-debtor's objection that the decree was inexecutable as a whole. But the Ct below (2) gave effect to the judgment-debtor's contention that, the suit having been allowed to be withdrawn, no executable decree could have been passed in respect of maintenance. In that view of the matter, the Ct below overruled the objection in respect of the realisation of the two sums of 5,000 & 1,400 with interest but upheld the contention in respect of the arrears of maintenance.
5. The present appeal by the decree-holder is therefore limited to the question of the arrears of maintenance claimed in the execution pro ceedings. There is no cross-objection or cross appeal by the judgment-debtor in respect of the principal sums of 5,000 & 1,400 plus interest, execution in respect of which has been allowed by the Ct below to proceed.
6. Mr. Brahmadeva Narayan, on behalf of the applt has contended, in the first instance, that the argument which partly found favour with Ct below that the suit stood withdrawn was not open to the resp for several reasons, the first, that no appeal had been preferred by the judgment-debtor from that portion of the order of the Ct below allowing the execution to pro ceed in respect of the two sums aforesaid, namely, 5,000 & 1,400 with interest, in as much, if this argument were well founded, no decree could have been passed as the argument about the withdrawal of the suit would apply with equal force to the entire decree, & not only to that portion of the decree which related to the arrears of maintenance & secondly, that no appeal had been preferred by the judgment-
debtor from the decree itself, which was drawn up by the trial Ct on the basis of the terms of the compromise recorded in this Ct. Reliance was placed on behalf of the applt on the observations of their Lordships of the Judicial Committee of the P. C. in the case of 'Anath Nath v. Dwarka Nath', 43 CWN 529: AIR (26) 1939 PC 86) & a D. B. of this Ct in 'Hardi Ram v. Kali Prasad', 29 PLT 499: (AIR (36) 1949 Pat 79).
It was further argued that the terms of the compromise declaring the applts' right to main tenance & making it payable on the 7th of each English Calendar month was itself executable, & reliance was placed upon the leading case -- a decision of P. B. of the Calcutta H. C. in 'Ashu-
tosh Banerjee v. Lakhimoni Debya', 19 Cal 139 (FB). In that case, their Lordships had ruled that a decree declaring the future maintenance of a person entitled to maintenance & making it payable at certain given intervals is executable & it is not necessary to institute a suit each time there has been a default. The decision of the F. B. of the Calcutta H. C. referred to above has been followed by a p. B, of this Ct in the case of 'Sabitri Thakurain v. Mrs. F. A. Savi',12 Pat 359 at p. 555: (AIR (20) 1933 Pat
308) where their Lordships of the D. B. of this Ct have also made reference to the decision of their Lordships of the P. C. in the case of 'Ekradeshwar Singh v. Mt. Janeshwari', 42 Cal 582: (AIR (1) 1914 PC 76).
7. To these arguments on behalf of the applt, the answer sought to be given by Mr. Banerji, on behalf of the resp is that, on a proper construction of the decree itself, it should be held that, whereas the two sums of 5,000 & 1,400 were made payable & realisable by execution, no such explicit direction is made in the other portions of the decree relating to arrears of maintenance or future maintenance. The contention therefore is that, in respect of the latter, namely, the arrears of maintenance & future maintenance, only the rights of the pltf were declared, & .she was left to her remedies by a regular suit instituted against all those persons who could have been made liable for the payment of arrears of maintenance & future maintenance. It was also urged that, whereas in the second & third clauses, the deft 5 is specifically named as the person liable to make the payment, no person is specifically named as liable for payment of the future maintenance mentioned in Cl. (1) or the arrears of maintenance mentioned in Cl. (6). In this connection it is necessary to bear in mind the fact that the compromise was only between the pltf & her husband's nephew, deft 5, apparently because he had come by the whole estate, including the interest of the pltf's diceased husband. Naturally, therefore it was he alone who would be liable to pay the maintenance. Hence, the omission of the name of the person liable to pay the maintenance or the arrears of maintenance was not a deliberate one but is a case of mere accidental omission.
8. Reliance was also placed on behalf of the resp upon the decision of a F. B. of this Ct in the case of 'Charu Chandra v. Sambhu Nath', 3 Pal LJ 255 at p. 267: (AIR (5) 1918 Pat 507 FB), where their Lordships have given directions as to what is to be done in a case where the compromise effected between the parties embraces matters not only directly arising on the pleadings of the parties but also matters extraneous to the suit. Their Lordships have directed that the entire agreement may be recorded as the terms of compromise between the parties; but the decree to be drawn up by the Ct should incorporate only those terms which relate directly to the matters in controversy between the parties. Applying the test laid down there to the present case, it would appear that all the terms of the compromise were incorporated in the decree passed by the Ct below. Hence, in my opinion, the decision to which our attention was drawn by the learned Advocate for the resp, far from being in support of his contention, lends some support to the contention raised on behalf of the applt that the intention of the parties was that future maintenance as also arrears of maintenance should be payable by executing the decree, & not by recourse to a separate suit. On general principles also, it is in my opinion, more consistent with reason & public policy that a compromise of the nature entered into by the parties in this case should be enforced by execution instead of compelling the decree-holder to take recourse to a separate suit, because a person in the position of the applt, who is a dependent member in a joint Hindu family, should not be compelled to incur further costs upon fresh litigation. The Ct is always in favour of construing a compromise in a manner which tends to shorten litigation & the Ct will always resist any attempt on the part of any of the parties to construe the decree in such a way as to multiply litigation. On a proper construction of the entire terms of the compromise between the parties in this case, in my opinion, it should be held that the parties contemplated that recourse to a fresh suit each time a default is made in the payment of maintenance or in the payment of arrears of maintenance was not necessary. Rather the parties must be deemed to have intended that they were putting an end to the litigation between them. Hence in my opinion, for the reasons given above, the contentions raised on behalf of the applt are sound.
9. But there is one small point raised on behalf of the resp. It relates to the question of interest which has been calculated on the arrears of maintenance & future maintenance after it has accrued. The compromise does make reference to interest in Cl. (5) but that clause must, on its true construction, refer to interest on instalments mentioned in Cls. (2) & (3) of the terms of the compromise. It can not refer to clauses (1) & (6), for the simple reason that, if it was so intended, arrears of maintenance had already accrued & still inte rest was not mentioned as being payable. It must therefore oe inferred that, either by mis take or after due deliberation, the parties did not agree to pay or receive interest on arrears of maintenance or of future maintenance when it fell due. Whatever may be the reason for this omission, the result is rather unfortunate for the lady. But it cannot be helped. She has entered into the terms of the compromise with her eyes open, &, if she did'not contemplate a contingency of a default by the judgment-
debtor & a consequent liability for payment of interest, she must bear her losses without any complaint at this stage.
10. For the reasons given above, the appeal is allowed, & the order passed by the Ct below, in so far as it was against the applt set aside, with this reservation that all interest claimed in the execution petn in respect of arrears of maintenance & of maintenance accrued after the compromise will be struck off from the claim. The applt is entitled to her costs in this Ct. As the decree-holder allowed the case against her to go 'ex parte', she is not entitled to costs in the Ct below.
C.P. Sinha, J.
I agree.