LexLAL BHAGWANT SINGH versus RAI SAHIB LALA SRI KISHAN DAS
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S.U.R. SUPRmME COURT REPORTS 559 r,AL BHAGvVANT SINGH v. • RA! SAHIB LALA SRI KISHEN DAS [MEHR CHAND MAHAJAN, DAS and BHAGWATI JJ.] Civil Procedure Code (Vo/ 1908), s. 144-Compromise decree- Stipulation to sell property to decreeholder within a week for amoiint due-Amendment of decree allowing judgment-debtor to pay in in- stalments, whole amount being payable on default of 8 instalments- Original decree restored by High Court-Sale in execution-Amended decree restored by Privy Council- Validity of sale-Restitution- U. P. Encumbered Estates Act (1984 as amended in 1989)-Pro- ceedings under s. 4 quashed by Board of Revenue-Sale of judgment debtor's property before Aniendment Act-Application under Amend- nient Act to amend previous application-Whether fresh proceedings --Validity of sale. Under a compromise decree the amount due to the plaintiff was fixed by mutual consent and it was further agreeii that the defendant should within one week of the date of the decree convey to the plaintiff immoveable properties sufficient to satisfy the decree. The U. P. Agriculturists Relief Act of 1934 having come into force, the decree was subsequently amended by the Civil Judge by reducing the amount and -directing that the amount may be paid in 12 annual instalments with the condition that if three instalments were in default the whole amount was to become immediately payable. The amended decree was set aside by the Chief Court in 1938. The decreeholder applied for execution, and a sale deed" was executed by the Civil Judge in 1939 for' the entire decree amount. The Privy Council reversed the decree cif the Chief Court and restored the amended decree of the Civil Judge in 1944. The judgment debtor applied for restoration of the·pro- perties with mesne profits by way of restitution: Held, confirming the decree of the Chief Court, that, as the judgment-debtor had not obtained any order staying the operation of the amended decree pending the decreeholder's appeal to the Chief Court he was bound to carry out the terms of the amended decree, and, as the Privy Council had merely restored the amend- ed decree without altering the provisions as to payment by instal- ments or extending the time for payment by instalments and its decree did not in any way alter the position of the parties as it stood under the amended decree, and, the sale was not in con- sequence of any error in a decree which was reversed on appeal by the Privy Council, the judgment-debtor was not entitled to restitution. Dayal Sardar v. Tari Deshi (I.L.R. 59 Cal. 647) and Gansu Rani v. Parvati Kuer (A.LR. 1941 Pat. 130) appraved. 195/J Jan. 31 560 SU!':REMB COURT RBPORTS [19.53) 1953 The judgment-debtor. in the above mentioned case aJ>plied under s. 4 of the U. P. Encumbered Estates Act, 1934, for ad- Lal Bhngwa1it ministration of his estate i111936 but the proceedings \Yere qua.shed Singh by J;he Board of Revenue in 1938. As no order for stay a·f exe- v. cution was obtained, a sale was effected in execution of the decree B~i S~hib Lala in :B1ebruary, 1939. The U. P. Encu1nbered Estates (An1endment) Sr1· Kisheii Das. Act, 1939, can1e into force after the date of the sale and the judgment-deb\01' applied on the 10th October, 1939, for amending his former application, but it was ultimately decided by the Chief Court that the amendment application of 1939 must be treated as fresh proceedings : . Helcl, confirming the decision of the Chief Oourt1 that as the ~ proceedings which were started in 1936 v.•ere quashed by the Board of Revenue in 1938, \be saie held in February, 1939, was unaffected by the bar imposed by s. 11 of the Act. The order rr1ade on the application of the 10th October was an order on a fresh application under s. 4 and it had no retrospective effect and could not affect the validity of the sale. effected when no application under s. 4 was pending. CIVIL APPELLATE .JURISDICTION: Civil Appeals Nos. lOl, 102 and 103 of 1951. Civil Appeal No. 101 of 1951 was an appeal from the Judgment and decree dated the 13th March, lfl46, of the Chief Court of Avadh at Lucknow in First Civil Appeal No. 132 of 1943 arising o·ut of the Judg- ment dated the 25th September, 1943, of the Court of Special J\1dge, 1st Grade, Sitapur in E. E. Act Suit No. 27/l of 1938. · Civil Appeals Nos. 102 and 103 of 1951 were appeals from the Judgment and Decree dated tlre 13th March, 1946, of the Chief Court of Av
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