- (1.) D. K. Seth, J. Petitioner as plaintiff filed suit No. 18 of 1974 against opposite party No. 3 as defendant for the recovery of a sum of Rs. 2200 in the Court of Munsif, Shikohabad. The said suit was decreed on 5th July 1978. Execution Case No. 26 of 1978 was levied for executing the said decree. Objection under Section 47 of the Code of Civil Procedure, hereinafter referred to as 'the Code', filed by the defen dant judgment- debtor was registered as Misc. No. 121 of 1979. By an order dated 14th August 1980 passed by the learned Munsif, Shikohabad in Misc. Case No. 121 of 1979, the objection under Section 47 of the Code was allowed. The plaintiff-petitioner filed Civil Revision No. 148 of 1980. By judgment and Order dated 31st July 1981, passed by the II Additional Dis trict Judge, Mainpuri, the said revision was dismissed and the order dated 14th August 1980 was confirmed. It is against these or ders the present writ petition has been moved.
(2.) THE learned counsel for the petitioner contends that prior to the filing of the objection registered as Misc. Case No. 121 of 1979, the judgment debtor had filed another objection to the execution which stood dismissed on compromise between. the parties which is Annexure T to the writ petition in which after the objection having been dismissed, the judgment debtor had agreed to make the payment of the decretal amount on 15th May 1979 and in default his properties would be sold on auction. THEre fore, according to the learned counsel for the petitioner Mr. R. K. Goswami, the second objection is not maintainable be cause of the principle of constructive res-judicata. It is also contended that the same objections which have been taken in Misc. Case. No. 121 of 1979 were also taken in Misc. Case No. 29 of 1979. THE judgment debtor having allowed the said objection to be dismissed by agreement, the judgment debtor is estopped from raising the said objection subsequently. He also contends that even on merits, the objection can not be sustained since Section 18 does not apply to pending suits and it has no manner of retrospective operation in view of the ex pression used in Section 18 of the U. P. Regulation of Money-lending Act, 1976, hereinafter referred to as 'the Act' with those of the Benami Transactions (Prohibi tion) Act, 1988. In support of his conten tion, Mr. Goswami relies on the case of R. Raiagopal Reddy v. Padmini Chandrasekharan JT 1995 (2) S. C. 667 : 1995 (1) JCLR 779 (SC ). The learned counsel for the opposite party Mr. R. K. Misra, on the other hand, contends that by reason of sub-section (4) of Section 26 of the Act, the decree has rendered inexecutable. According to him, by agreement, a decree rendered inex ecutable by operation of statute can not be revived or made executable. Inasmuch as there can not be any estoppel against statute. According to him, the said agree ment was not a compromise. The same was only postponement of execution which was kept alive and in default was to be executed. He further contends that the principle of res judicata, constructive or otherwise, is not attracted in the present facts and cir cumstances of the case. The alleged compromise can not be termed to be a compromise within the meaning of Order 23 Rule 3 of the Code. Inasmuch as the decree can not be varied or altered after the same has been passed by agreement. Therefore, there can not be any compromise with regard to the decree. At best the compromise can be treated to be an agreement of adjustment. If it is an agree ment of adjustment, then provision of Order 21 Rule 2 would be attracted. Unless such agreement satisfies the test of certifica tion as contemplated in Order 21 Rule 2, the same can not be treated to be an adjustment. In the present case, the decree-holder has not furnished the adjustment nor the Court has certified the same. It is also not the case of the decree-holder that the same was an adjustment. Then again there was no adjust ment of the decree which remained fully executable. It was only a case of postpone ment of execution of the decree till 15th May 1979 and nothing else.
(3.) NOW the question arises as to whether the agreement without being a compromise or an adjustment can be bind ing on the judgment debtor on the face of Section 26 (4) of the Act. A reading of An nexure T makes it clear that even if there was an agreement, the agreement had three parts-the first one that the objection shall stand dismissed, the second part is that the judgment debtor would pay the entire amount by 15th May 1979 and the third part is that the execution case shall remain pending and in default the decree shall be ex ecuted by putting the property of the judg ment-debtor in auction for sale. The said agreement does not show as to upon which consideration the judgment debtor had agreed to make those concessions which have been made in the said agreement. It does not appear as to what the judgment-debtor has gained by the said agreement. Inasmuch as even if this objection would have been dismissed on merit, still then the payment would have been postponed even for the period later than 15th May 1979 and that the decree would be executable in case the judgment debtor did not pay by putting the property of the judgment debtor into auction. Therefore, it is the decree- holder who had gained by removing the obstruc tion of the objection under Section 47 without conceding any benefit of gain to the judgment debtor. It conclusively proves that the said agreement is without any con sideration. Under Section 25 of the Con tract Act, an agreement without considera tion is void. Therefore, the said agreement being without consideration is also void. The decree holder can not derive any benefit out of the same. A compromise within the meaning of Order 23 Rule 3 is void for the same reasons relating to contract in view of explanation under Order 23 Rule 3 of the Code. That apart, the execution case was kept alive while the application under Sec tion 47 was allowed to be dismissed for non-prosecution. No issue having been decided, the principle of resjudicata, constructive or otherwise, can not be attracted. At the same time, it is not a case of withdrawal of the application under Section 47 within the meaning of Order 23 Rule 1 attracting mis chief of Sub-rule (4) thereof prohibiting the judgment-debtor from making any further application under Section 47. In execution proceedings, after the execution is dis missed, a fresh execution can be levied provided the same is not barred by limita tion. When the objection under Section 47 is not decided on merits, and the principle of resjudicata is not attracted, the dismissal of the application for non-prosecution even by agreement does not preclude the judgment debtor from filing a fresh application under Section 47. Since the execution is still con tinuing, the same can be objected to by the judgment debtor particularly in view of the observation made by me that the agreement was without consideration. There can not be any question of estoppel as against the judg ment debtor. Even then the nature of the agreement can not create estoppel in the facts and circumstances of the case as against the judgment debtor.;