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TMI Blog1969 (4) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the certificate. The suit failed in the trial court and it was dismissed on September 17, 1948. The certificate debtor, Radhakissen Mohta, preferred an appeal from original decree to this court which was registered as F. A. No. 186 of 1948. In the above appeal to this court, the parties filed a petition of compromise, incorporating the terms of settlement on August 13, 1949, and this court disposed of the appeal by passing a decree in terms of the said petition of compromise on August 24, 1949. As the dispute in the present appeal before us arises out of the rival interpretation of the said decree and the terms of settlement it is necessary to set out the material part of the terms which reads as herein: "1. The sum of Rs. 50,000 deposited by the certificate-debtor with the first sub-judge, Alipore, in Title Suit No. 121 of 1947 to be withdrawn and appropriated towards outstanding income-tax dues and the certificate-debtor will give his consent thereto. 2. In addition to the sum of Rs. 25,000 already paid the certificate-debtor will immediately pay a further sum of Rs. 1 lakh to the Income-tax Officer. 3. The present value of 1960 shares of Ganesh Commercial Co. Ltd. and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43 of 1951 claiming to recover a sum of Rs. 1,98,250 from the present appellants who are the heirs and legal representatives of Radhakissen Mohta--then dead. To this execution two objections under section 47 of the Code of Civil Procedure were filed on behalf of the appellants which were registered as Misc. Cases Nos. 156 137 of 1951. These objections succeeded and the learned subordinate judge held that the execution application as framed is not maintainable. The judgment of the learned subordinate judge dated April 16, 1952, is exhibit D. Two years thereafter on April 12, 1955, the respondent before us filed a fresh application for execution which was registered as Title Execution Case No. 16 of 1955. In this execution the respondent claimed recovery of a sum of Rs. 1,67,012-8-0 annas alleged to be payable by the heirs and legal representatives of the deceased Radhakissen Mohta--appellants--which was claimed to be payable in terms of the 3rd clause of the terms of settlement as aforesaid after deducting the sum of Rs. 10,000 already paid. The aforesaid amount was claimed to be the value of the shares referred to in the said clause as assessed by Shri G. Basu, the independent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere has yet not been a proper assessment of the value as contemplated by the terms of settlement. Mr. Mitra puts forward two reasons to support this contention of his. In the first place, Mr. Mitra contends that the valuation could not have been made without an appropriate notice to his clients giving them an opportunity to participate in the proceedings for the assessment of the value and, secondly, according to Mr. Mitra, the value that was agreed to be assessed was the present market value of the shares but what has been assessed by the assessor, Shri G. Basu, is the present intrinsic value of the shares. The second contention raised by Mr. Mitra in support of the appeal is that the decree under execution does not amount to a money decree which is capable of execution in the manner claimed by the respondent as, according to him, the compromise decree does not provide that there would be any decree for money realisable as such in execution. Mr. B. L. Pal, the senior advocate for the revenue authorities, has strongly contested both the points raised by Mr. Mitra. Mr. Pal contends that the terms of settlement nowhere provide that the valuation by the independent valuer of the sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the value exclusively in the hands of an independent valuer to be nominated by the Commissioner of Income-tax. There is no dispute that the Commissioner of Income-tax had nominated Shri G. Basu to be the independent valuer to value the shares. The terms of settlement nowhere provide that such valuation has got to be made upon notice to the judgment-debtor or any party whatsoever or after hearing any one in the matter. We are of the opinion that the parties left it to the judgment of an independent valuer whose decision would be binding between the parties. As there is no dispute that Shri G. Basu had since assessed the value on November 12, 1953, as it appears from letter, (exhibit C), the parties are bound to act on such valuation. Apart therefrom, there is no merit even in the suggestion that Shri G. Basu made the assessment without notice to the judgment-debtors. On the other hand, it appears clear from the correspondence, exhibit C-2 dated September 5, 1952, exhibit C-3, dated September 26, 1952, that the judgment-debtor's lawyer was being given notice of the proceedings for such assessment and that he was regularly participating in such proceedings; the minutes of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have found out such value by valuing the shares at the price then prevailing in the market. We are therefore of the opinion that the assessment as made by Shri G. Basu is not open to challenge on this account. Although Mr. Mitra fails in his first contention, yet we are, however, of the opinion that there is great substance in the second contention raised by him. Giving anxious consideration to the terms of settlement we have come to the conclusion that the said terms did not provide any decree for the money representing the value of the shares which is capable of execution in the manner claimed by the respondent. It must be remembered that the terms of settlement were entered into in an appeal which arose out of a suit in which the present respondent decree-holder was a defendant; the suit was one for a declaration that a certificate is void and not binding upon the certificate debtor; the certificate-debtor failed in such a suit and preferred an appeal and there was a compromise on the terms of settlement between the appellant certificate-debtor and the respondent, the revenue authorities. The terms provided in clauses 1 and 2 either withdrawal of certain money in deposit b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal claim as laid in the Certificate Case No. 241 I.T. of 1945-46. In our opinion, if the certificate-debtor do not choose to pay off all or any of the amounts payable under the said terms of settlement the revenue authorities are not empowered to realise the amounts by execution of the consequent decree passed by this court on such terms. They can only proceed with their certificate proceedings and realise the entire debt which not only remained alive but capable of execution by virtue of the agreement between the parties as appearing from the terms. We are however unable to hold that the decree, on the terms as passed by this court gave the revenue authorities any authority to realise the payments envisaged by the terms by process of execution of the decree as, in our opinion, the decree that was passed was not one for the money payable under the decree; obligation to pay the money was on the certificate-debtor only for the purpose of avoiding the other liabilities under the certificate and if he did not choose to pay, the consequence is that he may be made liable for the entire certificate-debt and in the certificate proceedings. The view which we have taken on the interpretatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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