# Maulud Ahmad v. Stale of U. P

- **Citation:** [1963] Supp. 2 S.C.R. 46
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** S. J. Imam, K. Subba Rao, N. Rajagopala Ayyangar, J. R. M~Dholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/maulud-ahmad-v-stale-of-u-p-2784
- **Pages:** 9

## Headnote

Compromise
Decree--Oanstructinn ~·t)ornpromise providing sale of mart.gaged properties-Executi(J,, 11•·oceedings-Maintainability-Oode of Civil Procedure,
li!Uc (Act 5 of 1908),
0. 23, r.3
A suit instituted by the respondents for the recovery of
•
"
money due under a simple mortgage from the appellants was
'-- ·
compromised by the parties under a memo dated September 30,
1955, and the court passed a decree as per the terms of the
compromise. By cl. I of the memo the defendants agreed to a
2 s.c.R. SUPREME COURT REPORTS
47
decree being passed as prayed for in the suit, while cl. 2 recited:
"That the mortgaged properties are hereby sold f0 r the amount
of the decree in full satisfaction thereof. The defendants will
execute a regular sale and within ten days from this date." The
appellants did not comply with the terms of cl. 2 and on
October 31, 1955, the respondents made an application before
the court praying that the appellants might be directed to execute
a sale. deed as per the terms of the compromise. The appellants
pleaded that the relief sought by the respondents could not be
had in execution proceedings but only by a separate suit, on
the grounds, inter alia, that the same did not relate to the suit
within 0. 23, r. 3, of the Code of. Civil Procedure, and that,
in any case, on a proper construction of the compromise the
consideration therefore was not the actual execution of the
conveyance by the judgment debtor but me1cly the agreement
to execute such a conveyance,
Held: (l) that the terms of the compromise related to
the suit .inasmuch as the property which was to be conveyed
consisted entirely of the property included in the mortgage.
(2)
that on the true construction of the compromise,
though els. 2 to 6 might constitute an integrated scheme for
adjusting the rights of parties, a mere agreement to convey
contained in cl. 2 by itself did not amount to a satisfaction of
the decree and that the consideration for the compromise was
the execution of a conveyance.
CrvIL APPELLATE JURISDICTION : Civil Appeal
"·
No. 176of1960.
Appeal from the judgment and decree dated
June 2, 1958, of the Mysore High Court in R. A.
No. 268 of 1957.
S. K. Javali, K. P. Bhat and B. R. L. Iyengar,
for the appellants.
S. K. Venkataranga lyengFJr and R. Gopala·
krishnan, for the respondents.
1962. November 14. The Judgment of the
Court was delivered by
A:YYANOAR, J.-On March 27, 1954, the three
Kapurs-who are the respondents before us-filed
original Suit No. 29 of 1954 before the District
1962
H~i T. J. Abdul
Shako~r
1962
lloji T. J .• 1bdul
~hakoor
v.
OiJa.1J1:um.z.r Kupar
A_)'._)'angar, J.
48
SUPREME COURTREPORTS[I963] SUPP.
Judge, Bangalore, against the 3 appellants who are
brothers, for the recovery of over Rs. 50,000/- and
subsequent interest and costs due on a simple mortgage.
Before the suit came on for trial the parties filed a
memo of compromise dated September 30, 1955, and
they prayed that the suit may be decreed in terms
thereof. The Court accepted the application and
passed a decree as prayed for, the order reading :
"It is ordered and decreed that the plaintiff's
suit be and the same is hereby decreed as per
terms of the compromise, the copy of which is
hereunto annexed".
·"
The terms of the Razinama ran as follows :
"l. That the defendants herein agree to a
decree being passed as prayed for.
That the mortgaged properties are hereby
sold for the amount of the decree in full
satisfaction thereof. The defendants will
execute a regular sale and within ten days
from this date.
3.
That the mortgaged properties are hereby
put in possession of the plaintiff (decreeholder) by the 3rd defendant (judgment
debtor) and judgment debtors 1 & 2
agreeing to pay rent at Rs. 75 each for the
two shops bearing Nos. 12 and 14 respec·
tively, Godown Street, Bangalore City in
their actual occupation and by attornment
of the other properties in the occuption of
the other tenants.
4.
That on the judgment-debtors or their
nominees tendering the aforesaid de

## Text

1962
Maulud Ahmad
v.
Stale of U. P.
Sub~a Rao, J.
1962
November, 14,
46
SUPREME COURT REPORTS [1963] SUPP.
approached any superior officer in the Police Department and that the appellant had manipulated the
records on the dictation of such an officer. This is
a pure surmise based upon an observation made by
the learned Judge of the High Court in the judgment.
. There is nothing improbable in Chauhan or some
other person interested in him directly approaching
the appellant and the appellant acting in the manner
he did for consideration or otherwise. If a police
officer manipulates the record such as police diary
etc., it will be the end of honest criminal investigation
in our country. Such offences shall receive deterrent
punishment. The punishment awarded errs more on
the side of leniency than otherwise.
For the aforesaid reasons we hold that the
decision of the High Court is correct. The appeal
fails and is dismissed.
Appeal dismissed.
HAJI T. J. ABDUL SHAKOOR AND OTHERS
v.
BIJAY KUMAR KAPUR AND OTHERS
(S. J. IMAM, K. SUBBA RAO, N. RAJAGOPALA
AYYANGAR and J. R. M~DHOLKAR, JJ.)
Compromise
Decree--Oanstructinn ~·t)ornpromise providing sale of mart.gaged properties-Executi(J,, 11•·oceedings-Maintainability-Oode of Civil Procedure,
li!Uc (Act 5 of 1908),
0. 23, r.3
A suit instituted by the respondents for the recovery of
•
"
money due under a simple mortgage from the appellants was
'-- ·
compromised by the parties under a memo dated September 30,
1955, and the court passed a decree as per the terms of the
compromise. By cl. I of the memo the defendants agreed to a
2 s.c.R. SUPREME COURT REPORTS
47
decree being passed as prayed for in the suit, while cl. 2 recited:
"That the mortgaged properties are hereby sold f0 r the amount
of the decree in full satisfaction thereof. The defendants will
execute a regular sale and within ten days from this date." The
appellants did not comply with the terms of cl. 2 and on
October 31, 1955, the respondents made an application before
the court praying that the appellants might be directed to execute
a sale. deed as per the terms of the compromise. The appellants
pleaded that the relief sought by the respondents could not be
had in execution proceedings but only by a separate suit, on
the grounds, inter alia, that the same did not relate to the suit
within 0. 23, r. 3, of the Code of. Civil Procedure, and that,
in any case, on a proper construction of the compromise the
consideration therefore was not the actual execution of the
conveyance by the judgment debtor but me1cly the agreement
to execute such a conveyance,
Held: (l) that the terms of the compromise related to
the suit .inasmuch as the property which was to be conveyed
consisted entirely of the property included in the mortgage.
(2)
that on the true construction of the compromise,
though els. 2 to 6 might constitute an integrated scheme for
adjusting the rights of parties, a mere agreement to convey
contained in cl. 2 by itself did not amount to a satisfaction of
the decree and that the consideration for the compromise was
the execution of a conveyance.
CrvIL APPELLATE JURISDICTION : Civil Appeal
"·
No. 176of1960.
Appeal from the judgment and decree dated
June 2, 1958, of the Mysore High Court in R. A.
No. 268 of 1957.
S. K. Javali, K. P. Bhat and B. R. L. Iyengar,
for the appellants.
S. K. Venkataranga lyengFJr and R. Gopala·
krishnan, for the respondents.
1962. November 14. The Judgment of the
Court was delivered by
A:YYANOAR, J.-On March 27, 1954, the three
Kapurs-who are the respondents before us-filed
original Suit No. 29 of 1954 before the District
1962
H~i T. J. Abdul
Shako~r
1962
lloji T. J .• 1bdul
~hakoor
v.
OiJa.1J1:um.z.r Kupar
A_)'._)'angar, J.
48
SUPREME COURTREPORTS[I963] SUPP.
Judge, Bangalore, against the 3 appellants who are
brothers, for the recovery of over Rs. 50,000/- and
subsequent interest and costs due on a simple mortgage.
Before the suit came on for trial the parties filed a
memo of compromise dated September 30, 1955, and
they prayed that the suit may be decreed in terms
thereof. The Court accepted the application and
passed a decree as prayed for, the order reading :
"It is ordered and decreed that the plaintiff's
suit be and the same is hereby decreed as per
terms of the compromise, the copy of which is
hereunto annexed".
·"
The terms of the Razinama ran as follows :
"l. That the defendants herein agree to a
decree being passed as prayed for.
That the mortgaged properties are hereby
sold for the amount of the decree in full
satisfaction thereof. The defendants will
execute a regular sale and within ten days
from this date.
3.
That the mortgaged properties are hereby
put in possession of the plaintiff (decreeholder) by the 3rd defendant (judgment
debtor) and judgment debtors 1 & 2
agreeing to pay rent at Rs. 75 each for the
two shops bearing Nos. 12 and 14 respec·
tively, Godown Street, Bangalore City in
their actual occupation and by attornment
of the other properties in the occuption of
the other tenants.
4.
That on the judgment-debtors or their
nominees tendering the aforesaid decree
amount through court or otherwise within
the aforesaid one year from the date of
.,.
2 S.C.R. SUPREME COURT REPORTS
49
the decree, the decree·holders bind them·
selves to reconvey the properties which are
sold to them under this rajinama at their
cost provided it is distinctly agreed that
time is essence of the contract and provided
also that if the judgment-debtors default
in paying the rents as aforesaid on or before the 15th of any month they will lose
the conc!"ssion hereby offered to them' of
having reconvcyance of the propertie(in
one years' time.
5.
Attachment on the properties belonging to
the 2nd and 3rd defendants obtained before judgment st:inds hereby raised.
6.
The defendants hereby assure that the
properties hereby sold are not subject to
any attachment. In the event of any
attachment subsisting on the properties,
it is hereby agreed that the
mortgage
security shall not be merged by the sale."
Broadly stated, the question raised in this appeal
relates to the executability of cl. 2 of this compromise decree but before examining this contention it is
necessary to state a few facts.
It would be noticed
that under the second sentence of cl. 2 the appellants
had to execute a regular sale-deed within ten days
from September 30, 1955. They, however, did not
do so
and thereupon the respondents filed, on
October 31, 1955, Interlocutory application No. 6 of
,;
1955 (later numbered as Execution Application
No. 83 of 1956) for directing the appellants to
execute the sale-deed and they annexed to their application a draft sale-deed in which els. 3 to 6 of the
razinama were recited.
Apparently there were disputes between the parties each accusing the other
that it had not conformed to its undertaking under
the compromise, but with these we are not now
1962
Hoji T. J. AU.I
Sluikoor
y,
BljaiKwnarE ...
A7Jcm1ar, I 1
1962
Hqji T. J. A.bdul
Shakoor
v.
IJijai Kumar Kapoor
i(Jyangar., J.
50
SUPREME COURT REPORTS [1963] SUPP.
concerned. Thereafter the appellants filed an applica·
tion in the suit on March 16, 1956, praying that a
sale-deed might be executed in favour of a third party
to the proceedings who had agreed to purchase the
property on terms of paying the full decree-amount
as provided for by cl. 4 of the Razinama. This
application was opposed by the respondents and
there were further applications of a similar type
which it is not necessary to detail except to point
out that they all proceeded on the basis that the
compromise-decree was capable of execution with·
out any necessity for a further suit. The appellants
did not succeed in these applications. It is sufficient
if hereafter attention were confined to the application
by the respondents-E. A. 83 of 1956 by which they
sought to get the appellants· to execute a sale-deed in
their favour in accordance with the opening sentence
of cl. 2 of the compromise. The appellants opposed
this application on the technical ground that the
relief sought could not be had in execution but only
by a separate suit in as much as the same did not
"relate to the suit" within 0. XXIII, r. 3, Code of
Civil Procedure,
to whose terms we shall refer
presently. This objection was upheld by the learned
District Judge of Bangalore and the prayer of the
respondents for directing the appellants to execute a
sale-deed in their favour was rejected. This.order
has been reversed bv the learned Judges of the High
Court on appeal by the respondents and it is the
correctness of this judgment that is canvassed in this
appeal which comes before us on a certificate of fit·
ness granted by the High Court under Art. 133 (l)(a)
of the CoDstitution.
It would be seen from this narration that the
point involved in the appeal is very narrow and turns
on the question whether the High Court was justified
in directing the appellants to execute a sale-deed
conveying the suit properties to the respondents in
the proceedings in execution of the decree in original
2 S.C.R.
SUPREME COURT REPORTS
51
suit No. 29 of .1954 or whether the
respondents
could obtain that relief only in an independant suit
instituted for that purpose. It is common ground
that the decree embodied the entire razinama including all its terms. The relevant statutory provision
for the passing of decrees by
compromise
is
0. XXIII, r. 3, Code of Civil Procedure, which runs :
"Where it is proved to the satisfaction of the
Court that a suit has been adjusted wholly or
in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the
subject-matter of the suit, the Court shall order
such agreement, compromise or satisfaction to
be recorded and shall pass a decree in accordance therewith, so far as it relates to the suit."
We do not, having regard to the facts of this
case, consider it necessary to examine the position
whether, when a decree has been passed embodying
all the terms as part of the decree, an objection as
to the executability of any particular term could be
raised in execution proceedings, but shall proceed on
the basis that it could be. There is no dispute that
the agreement was lawful and an executable decree
could be passed "so far as it related tq the suit".
Though in the courts below most of the argument
turned on the import of the expression "so far as it
relates to the suit" occuring in r. 3, learned Counsel
for the appellants did not stress that contention before
us, but rather on the construction of the several
;
clauses of the compromise and their inter-relation to
which we shall advert presently. Wemight, however, point out that the learned Judges were right in
the view they took that the terms of the compromise
"related" to the suit. The property which was to be
conveyed consisted entirely of property included in
the mortgage and which wa8. therefore liable to be
sold in execution of the mortgage decree which was
1912
H•ji T. J. Ahtlrl
SA<A:oor
••
Bijai Jrumor lra[116
..(1 .... , ... 1.
1962
Haji T.J. A6tlul
Sh,koor
v.
Bijai Kumar Kapur
A.)yangar, J.
52
SUPREME COURT REPORTS [1963]SUPP.
the relief sought in the plaint. The sale price for the
conveyance under the Razinama was the sum for the
recovery of which the suit was laid. There was
therefore nothing which was outside the scope of the
suit. Besides all this, the conveyance was the consideration for the compromise. In these circumstances,
it is not a matter for surprise that learned Counsel
for the appellants laid little emphasis on the point
which persuaded the learned District Judge to dismiss the respondents' application.
Learned Counsel for the appellants however
raised before us two contentions in the alternative.
His first and primary contention was that on a proper
construction of the compromise, the consideration
therefor was not the actual execution of the conveyance by the judgment-debtor to the decree-holder but
metely the agreement to execute such a conveyance.
He pointed out that under cl. I of the compromise
the defendants had agreed to a decree being passed as
prayed for, which meant that a mortgage decree
drawn up in the usual form had to be passed. That
decree, it was submitted, was under the compromise
agreed to be treated as satisfied and full satisfaction
to be recorded immediately on the filing of the
compromise, and he suggested that the opening words
in cl. 2 "The mortgaged properties are hereby sold
for the amount of the decree in full satisfaction
thereof" was a reference to the agreement to execute
the conveyance. There were other clauses in the com·
promise-els. 3 to 6-but these, he submitted, related
to the inter se rights between the parties. The
contention was that these other clauses of the
raiinama including the second limb of cl. 2 were
intended to be enforced or implemented not by way
of execution of the decree in this suit but that the
decree to be passed under cl. 1 was to be treated as
fully satisfied on the filing into court of the memo of
compromise and the same being recorded by the
court with the result that thereafter no portion of the
2 S.C.R.
SUPREME COURT REPORTS
53
decree remained alive. We find ourselves wholly
unable to accept ·this argument. No doubt, under
cl. I there was to be a simple mortgage decree as
prayed for in the suit, but it would, however, not be
a proper construction of the 1st sentence of cl. 2 to
say that the mere agreement to convey and not an
actual conveyance was intended to operate as a
satisfaction of the decree l?assed or to be passed under
cl. 1. Learned Counsel 1s, no doubt, right in his
submission that the sale of the property to the
decree-holders under cl. 2 was not to be absolute in
the sense of conferring a right to an unconditional
conveyance since the title to be obtained under the
sale was subject to the conditions contained in els. 3
to 6 and particularly cl. 4 under which it was
stipulated that the title to the property might, on the
happening of certain contingencies, be divested from
decree-holders to whom it had been conveyed under
cl. 2. In that sense els. 2 to 6 might constitute an
integrated scheme for adjusting the rights of parties
but on that account it would not be open to the
construction that the mere agreement to convey
contained ·in cl. 2 (subject to the conditions stipulated
in els. 3 to 6) by itself amounted to a satisfaction of
the decree.
The other submission of learned Counsel was
that the learned Judges should not have directed the
execution of a conveyance in favour of the respondents
without attaching to it the conditions laid down in
els. 3 to 6 and also without an examii:tation of the
question whether the appellants were entitled to
enforce the reconveyance provided by those clauses.
On this matter the
foamed Judges
expressed
themselves thus:
"The decree-holder is entitled to execute the
decree in respect of clause 2 of the compromise.
No opinion is expressed as to the executability
1962
Haji T. J. Abihd
Shakoor
v.
Bijai Kumar Kaput
.4)'.J'angar, J.
1962
H~i T. J. AU•I
SllM•or
v.
BU•.1 x...., lrtlf*•
A,1an101, I.
54
SUPREME COURT REPORTS [1963] SUPP.
of the other clauses of the compromise as that
question has not been raised before us."
The fact, therefore, was that this point about either the
inter-relation between cl. 2 on the one hand and els. 3
to 6 on the other or the contention of the appellants
that they were entitled to relief under els. 3 to 6 was
not raised before the High Court and the matter was
therefore left open. The appellants can in the
circumstances obviously have no cause for complaint
that the High Court did not deal with it. The question
as to whether the appellants are entitled to relief
under els. 3 to 6 or whether they had lost their right
to do so, is one which would have to be investigated
on facts and cannot therefore be urged before us. We
do not, therefore, propose to pronounce upon it either.
It would, of course, be open to the appellants to
agitate their rights in appropriate proceedings if they
are so advised.
No other point has been urged
before us.
The appeal fails and is dismissed with costs.
Appeal dismissed.