Banerjee, J. - (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: "1. There will be a decree in favour of the plaintiff against the defendant No. 1 for the sum of Rs 60,000 (Rupees Sixty thousand) only with interest thereon at the rate of 9 per cent (Nine per cent) per annum till payment There will also be a decree in terms of Clauses (c) and (e) of the plaint. The first defendant has already paid Rs. 4,500 (Rupees four thousand and five hundred only) which has been appropriated by the plaintiff towards interest payable by the first defendant upto the date of this decree. 2 The defendant No. 1 shall sell and the defendant No. 2 will buy the right, title and interest of the defendant No. 1 in his business of Capri Restaurant carried on by him as the sole proprietor thereof at No. 15/6, Chowringhee Road, Calcutta-13, free from all encumbrances for the sum of Rs. 1,80,000 (Rupees one lakh eighty thousand only) and the Sale Deed and/or other assurances will be executed by the defendant No. 1 in favour of the defendant No. 2 as hereinafter provided. 3. Out of the said sum of Rs. 1,80,000 (Rupees one lakh eighty thousand only) the defendant No 2 will pay to plaintiff for and on behalf of defendant No 1 the said decretal sum of Rs. 60,000 (Rupees sixty thousand only) in full satisfaction of the mortgage which is the subject matter of the suit and the decree mentioned in Clause (i) hereof and pay the balance sum of Rs. 1,20,000 (Rupees one lakh twenty thousand only) following (sic):-- (i) Rs. 10,000 on confirmation of these terms in part payment of the consideration money. (ii) Rs. 80,000 (Rupees eighty thousand only) at the time of execution and registration of the Deed of Sale of the said business of Capri Restaurant with all its assets and goodwill free of all encumbrances. (iii) The balance of Rs. 30,000 (Rupees thirty thousand only) to be paid 90 (ninety) days after registration of the Deed of Sale." 4. The defendant No. 1 shall execute and register in favour of the defendant No. 2 a Deed of Sale against payment of the said sums of Rs. 10,000 and Rs. 80.000 aggregating to Rs. 90.000 (Rupees ninety thousand only) out of the said sum of Rs. 1,20.000 (Rupees one lakh and twenty thousand only) as aforesaid The form of the Sale Deed has been agreed upon between the parties and a copy thereof is annexed herewith and is to be treated as a part of these terms. 5. The defendant No. 1 will make over possession of the said business of Capri Restaurant with all its assets and goodwill to the defendant No. 2 simultaneously with the execution of the Sale Deed Inventory as a preliminary for taking over possession will commence immediately after payment of the mm of Rs. 10,000 as mentioned in Clause 3(i) hereof and defendant undertakes to give all facilities for the same. 6. The defendant No. 1 will withdraw his name from the joint tenancy held by him with defendant No. 2 in respect of premises No. 15/6 Chowringhee Road, Calcutta, and leave the same in exclusive enjoyment and possession of defendant No. 2. 7. Each party will pay and bear his respective costs." The defendant No. 2 paid all sums of money, excepting a sum of Rs. 29,000 (admittedly not Rs. 30,000 as in the tabular statement) In these circumstances, the application for execution of the consent decree was made by the defendant No. 1 appellant Trilok Chand Kapur against Dayaram Gupta, defendant No. 2 respondent.;