LexPARBATI DEVI & ORS. versus MAHADEO PRASAD TIBREWALLA
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156
PARBATI DEVI & ORS.
v.
MAHADEO PRASAD TIBREW ALLA
July 31, 1979
[N. L. UNTWALIA AND A. P. SEN, JJ.]
Limitation Act 1908, Art. 183, Lin1itation Act 1963, Art. 136 & Code of
Ciril Procedure 1908 (V of 1908), S. 48-Money suit based on
n1ortgage-
Consent decree by Court-Part payments n1ade-Legal representative substi-
tuted on death of ;udgn1ent-debtor-Consent
order 011 basis of
settlement
passed by Court-Execution filed-If ti1ne-barred,
In a suit for recovery of n1oney on the basis of
a mortgage, a consent
decree was passed.
When the judgment-debtors failed to pay the a.mount the
mortgaged properties were ordered to be sold.
The decree-holder assigned his
interest under the decree in favour of the respondent and this was
approved
by the Court.
A part-payment was made to the decree-holder.
On the death
of one of the judgment-debtors, his heirs and legal representatives (appellants
in this appeal) were substituted.
On June 17, 1953
a consent
order was
passed by the Court on the basis of the terms of settlement arrived at between
the parties. According to the will left by one of the
judgment-debtors
his
daughter was the universal legatee and his son-in-law \Vas the sole executor ..
When the decree-holder sought ex'ecution of the decree a Single Judge of
the High Court dis1nissed the application on the grounds-( 1) that the terms
of settlement. between the parties recorded on
17th June, 1953 were entirely
different from the original decree and had the effect of superseding
it;
(2)
that the fact of the death of one of the judgment-debtors was
not recorded
and his heirs were not substituted a.nd (3) execution was barred under s. 48
of the CoUe of Civil Procedur.
On appal, a Division Bench
of the
High
Court reversed the order of the Single Judge.
Dismissing the appeal,
HELD : 1. There was no bar of Iimitatiou in the execution in9tituted in
1965.
At no point of time the mortgag'e decree had been fully satisfied.
It
is not a case in which the execution v,ras barred either under s. 48 CPC or
Art.
183 of the Limitation Act, 1908.
Execution was not barred under Art.
136 of the Limitation Act, 1963.
[159D]
2. There is no force in the contentioo that it was already ban'ed v.rhen the
1963 Act came into force.
All through steps had been taken by the decree-
holder to enforce the decr'ee.
When the order of sale of the mortgaged pro-
perties was passed in 1929 some payment~ \Vere made and finally accounts
were settled in 1934.
Thereafter th'e mode of execution proceeded by
ap-
pointment of a. rece'iver.
Some money \Vas paid in 1939. Jn 1945 the heirs
and legal representatives
of on'e ()f the deceased
judgment-debtors were
substituted. Appellant no. 1 was allowed to take steps for the satisfaction of
the decree; but nothing was done.
A settlement was again arrived at in 1953
for satisfaction of th'e decree but on the judgment-debtor's failure to comply
with the terms of the settlement the present proceedings were started well
within 12 years.
[!59E-HJ
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PARBATI DEVI v. MAHADEO PRASAD (Untwalia, !.)
157
3. The daughter of the second judgment-debtor was competent to represent
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the estate of her father.
Even if her husband who was the sole executor of
the will was not substituted, execution was not defective.
[160B]
The Andhra Bank Ltd. v. R. SriniFasan and Others [1962] 3 S.C.R
391,
referred to .
4. The settlement of 17th Jm1e, 1953 was not an altogether renovation of
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the old decre'e.
All that woo done was that the amount due was quantified
and the rnocle of satisfactioil was prescribed giving oppOrtunity to the judg~
ment-debtors to satisfy the decree by conveying one of the
two mortgaged
houses.
The judgment-debtors did nothing.
Though the terms of settlement
were silent with regard to what \Vas to happen on failure to satisfy the decree,
it is legitimate to assume that the parties. intended that the decree holders
would be entitled to reailise the dues by execution of the original mortgage
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decree. The order of 17th June, 1953 passed by the Court had 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 du'es.
On their failure to do so they were liable to be proceeded with
in execution of the original n1ortgage decree.
{l60C-F1
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