(1.) This is an appeal from an order by Ray, J. by which his Lordship dismissed an application for execution of a decree.
(2.) Facts, in so far material for this appeal, are hereinafter shortly stated.
(3.) Laxmi Chandra, respondent No. 2 herein, as plaintiff, instituted Suit No. 887 of 1961 against the defendant No. 1 appellant Trilok Chand Rapur, inter alia, claiming a decree for Rs. 61,875, declaration that the assets of the business "Capri Restaurant" as also the goodwill thereof and all business contracts and other engage ments in connection with the said business stood charged with the payment of the dues of the plaintiff and also sale of the business "Capri Restaurant" in pro tanto satisfaction of the plaintiff's claim. The circumstances in which the claim was made allegedly were that the appellant Trilok Chand, as the owner of the business "Capri Restaurant" approached the plaintiff Luxmi Chandra for a temporary accommodation loan of Rs. 60,000 for running his business, and the plaintiff lent and advanced the said sum of money on a deed of hypothecation and pledge, dated February 2, 1961 of the assets of the business "Capri Restaurant" and the goodwill thereof. By the deed aforesaid, it was, inter alia, agreed that defendant No. 1 Trilok Chand Kapur would repay the debt by June 1, 1961, together with interest at the rate of 9 per cent per annum and costs, charges and expenses, as between attorney and client, which plaintiff might incur for recovery. The defendant Trilok Chand Kapur did not pay in terms of the deed. Hence the suit. In the said suit, Dayaram, the father of the plaintiff was impleaded as defendant No. 2, because the defendant No. 1, as plaintiff, had earlier filed a suit (being Suit No 843 of 1961) against the said defendant No 2 alleging that his son, the present plaintiff, was benamdar for the father, the latter being bound by a separate agreement with the present defendant No. 1 appellant in the matter of the advancement of the sum of Rs 60,000 No relief, however, was claimed against the defendant, the father. In the said suit (namely Suit No. 887 of 1961) there was decree by consent, on January 16, 1962, on the following terms: