Posted On by &filed under Bombay High Court, High Court.


Bombay High Court
Shivayagappa Sangappa Kengual vs Govindappa Paudappa on 20 June, 1913
Equivalent citations: (1913) 15 BOMLR 768, 20 Ind Cas 969
Author: K Basil Scott
Bench: B Scott, Kt., Beaman, Shah


JUDGMENT

Basil Scott, Kt., C.J.

1. The question referred to the Full Bench is :- Is a compromise in a suit which comes under the Dekkhan Agriculturists’ Relief Act bad in law because it is made without compliance with the special provisions of that Act? That question is couched in very general terms, but it may be construed as referring to the special provisions of Section 15B, which are the only special provisions referred to in the statement of the case. The parties have agreed to a compromise of a mortgage suit, under which, upon the failure to pay two instalments the whole of the mortgaged property may be brought to silent and in accordance with the terms of that compromise, which was proved to the satisfaction of the Court under Order XXII, Rule 3, the Court, as it is directed to do by that rule, ordered that the compromise be recorded, and passed a decree in accordance therewith.

2. It is now said that the Court has not noticed that it was not a lawful agreement or compromise, and that the illegality V consisted in its not containing provisions similar to those expressed in Section 156 of the Dekkhau Agriculturists’ Relief Act.

3. Section 15B of the Dekkhan Agriculturists’ Relief Act in terms only applies where the Court in its discretion directs that the amount due shall be payable by instalments, and where it has in its discretion given that direction then certain consequences follow as to the amount of property which may be sold to satisfy default in payment of any of the instalments. But there is nothing to show that the Legislature intended that the provisions of that section should be applied by analogy wherever a compromise is entered into, which is to be recorded by the Court and to form the basis of a consent-decree. As Mr. Justice West observed in Gangadhar Sakharam v. Mahadu Santaj (1883) I.L.R. 8 Bom. 20, 24. It is a “general principle that exceptional provisions are not to receive a development to all their logical consequences contrary to the general principles of the law “. Here we are asked to extend by analogy the provisions of a special section contrary to the general principles expressed in Order XXIII, Rule 3. A compromise which is made by parties who are suit juris should be given effect to. We do not think that there is anything unlawful in the compromise or contrary to public policy. The line of reasoning would involve the consequence that every consent-decree in a mortgage suit, in which less time than six months or a greater time than six months is given to the mortgagor to discharge his mortgage-debt, is illegal, because it violates the provisions of the Civil Procedure Code, Order XXXIV, Rule 2 (c), which would be absurd. We, therefore, answer the question, limited in the manner above stated, in the negative.


Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

66 queries in 0.291 seconds.