1953 (5) TMI 33 - HC - Indian Laws

Summary

Issues Involved:
1. Premature execution and contravention of compromise decree terms.
2. Validity and service of notice under Order 21, Rule 22, C.P.C.
3. Legality and jurisdiction of the order amending the execution petition and the enforceability of the charge on immovable properties.

Detailed Analysis:

1. Premature Execution and Contravention of Compromise Decree Terms:
The judgment-debtor objected that the execution was premature and violated the terms of the compromise decree. However, no evidence was provided to support this objection. The appellant's counsel conceded that there was no merit in this objection based on the materials on record.

2. Validity and Service of Notice under Order 21, Rule 22, C.P.C.:
The judgment-debtor argued that the notice under Order 21, Rule 22, C.P.C. was not duly served, thereby fraudulently denying him the opportunity to object to the execution in time. The court found that the notice was duly served, and no objections were raised by the judgment-debtor at the appropriate time. The appellant's counsel did not press this objection further, acknowledging the lack of supporting evidence.

3. Legality and Jurisdiction of the Order Amending the Execution Petition and Enforceability of the Charge on Immovable Properties:
The primary contention was that the order amending the execution petition to include the sale of charged immovable properties was illegal and beyond jurisdiction. The judgment-debtor argued that the compromise decree merely declared a charge and did not create an enforceable charge, necessitating a fresh suit for enforcement. Furthermore, it was contended that the immovable properties could not be sold without prior attachment.

The court held that the executing court has inherent powers under Section 151 of the Code to allow amendments to execution petitions in appropriate cases. The court found no negligence on the part of the decree-holder, and circumstances had changed since the original execution petition, justifying the amendment. The court emphasized the broad discretion of the executing court in allowing amendments, especially when no limitation issues arise.

The court also addressed the argument regarding the enforceability of the charge. It concluded that the compromise decree, particularly terms 5 and 6, created an enforceable charge on the judgment-debtor's immovable properties. The court noted that the language of the Solenama indicated the parties' intention to make the charged properties available for the realization of the decree-holder's dues in execution. Consequently, the court upheld the order for the sale of the immovable properties without prior attachment.

The court cited various precedents supporting the enforceability of charges created by consent decrees in execution proceedings. It distinguished cases where the decree was not made on consent or where the decree explicitly required a fresh suit for enforcement.

Conclusion:
The court dismissed the appeal, affirming the order allowing the amendment of the execution petition and the sale of the charged immovable properties without prior attachment. The judgment emphasized the executing court's discretion in allowing amendments and the enforceability of charges created by consent decrees in execution proceedings. The appeal was dismissed without costs.