Anil Kumar Sen, J.
1. This is an appeal against an order dated March 15, 11958 passed by the learned Subordinate Judge, First Court, Alipore. District 24 Parganas in Misc. Case No. 96 of 1955 --arising out of Title Execution Case No. 16 of 1955 -- dismissing thereby an objection under Section 47 of the Code of Civil Procedure.
2. The objectors are the heirs and legal representatives of a deceased judgment-debtor Radhakissen Mohta. In or about the year 1945-46 the Revenue Authorities started Certificate Case No. 241 I. T. 1945-46 before the Certificate Officer, 24 Parganas for recovery of certificate dues from the said Radhakissen Mohta. While the said proceeding was pending Radhakissen Mohta instituted Title Suit No. 121 of 1947 in the First Court of the Subordinate Judge at Alipore against the predecessor-in-interest of the present respondent for a declaration that the certificate filed in the aforesaid Certificate Case No. 241 I. T. of 1945-46 is void, illegal, inoperative and not binding on him and for cancellation of the certificate. The suit failed in the trial court and it was dismissed on September 17, 1948. The certificate debtor Radhakissen Mohta preferred an appeal from original decree to this court which was registered as F. A. No. 186 of 1948. In the above appeal to this court, the parties filed a petition of compromise incorporating the terms of settlement on August 13, 1949 and this Court disposed of the appeal by passing a decree in terms of the said petition of compromise on August 24, 1949. As the dispute in the present appeal before us arises out of the rival interpretation of the said decree and the terms of Settlement it is necessary to set out material part of the terms which reads as herein:
'1. The sum of Rs. 50,000/- deposited by the Certificate-debtor with the first Sub-Judge, Alipore in T. Suit No. 121 of 1947 to be withdrawn and appropriated towards outstanding income-tax dues and the Certificate-debtor will give his consent thereto.
2. In addition to the sum of Rs. 25,000/- already paid the Certificate-debtor will immediately pay a further sum of Rs. 1 lac to the Income-tax Officer.
3. The present value of 1960 shares of Ganesh Commercial Co. Ltd. as determined by an independent valuer nominated by the Commissioner of Income-tax, West Bengal, will also be immediately paid.
4. The department will not require payment of the balance of the income-tax and E.P.T. demands remaining outstanding after the aforesaid payments in accordance with this settlement.
5. The assessee will not claim any refund on account of deficiencies, if any, hi respect of the pending E.P.T. assessments for the two remaining C.A.Ps, ending October, 1945 and March, 1946. Nor will such amounts which would otherwise have been repayable under the proviso to Section 12 of the E.P.T. Act be taken into account in computing the total income for income-tax purposes for the corresponding assessment years.
6. The appeal in the High Court arising out of the recovery proceeding (being Appeal No. 186 of 1948 A.O.D.) and the recovery proceedings before the Certificate Officer, 24 Parganas (being Certificate Case No. 241 I. T. of 1945-46) will thereupon be withdrawn by the Certificate-debtor and the Income-tax Department respectively. Each party to pay his costs throughout irrespective of any order or decree for costs already made.
7. The Rending suits in the High Court, (a) against Mr. Sital Prasad being No. 1788 & 1941 & (b) against Nurzaman & Anr. being No. 1831 of 1951 will be struck off, each party paying his own costs.
8. All costs of the valuation of the shares of Ganesh Commercial Company Ltd. (referred to in Clause 3) will be borne by the assessee.
These terms when carried out will mean and include the settlement and termination of all proceedings arising out of the I.T. Assessment for the year 1940-41 and F.P.I, assessment for the corresponding C.C.P.'
3. It is not in dispute that over and above the sum of Rs. 50,000 and Rs. 25,000 referred to in Clauses 1 and 2 of the above terms, the Certificate-debtor had also paid a sum of Rupees 1 lac as referred to in Clause 2 and a further sum of Rs. 10,000 towards the value of the shares referred to in Clause 3 of the terms as above. It is also not in dispute that save as aforesaid no other sum has yet been paid either by the Certificate-debtor or his heirs and legal representatives--the present appellants.
4. In or about the year 1951 the present respondent put the aforesaid corn-promise decree into execution in Title Execution No. 43 of 1951 claiming to recover a sum of Rs. 1,98,250 from the present appellants who are the heirs and legal representatives of Radhakissen Mohtathen dead. To this execution two objections under Section 47 of the Code of Civil Procedure were filed on behalf of the appellants which were registered as Misc. Case Nos. 136 and 137 of 1951. These objections succeeded and the learned Subordinate Judge held that the execution application as framed is not maintainable. The judgment of the learned Subordinate Judge dated April 16, 1952 is Ext. D.
5. Few years thereafter on April 12, 1955 the respondent before us filed a fresh application for execution which was registered as Title Execution Case No. 16 of 1955. In this execution the respondent claimed recovery of a sum of Rs. 1,67,012-8 annas alleged to be payable by the heirs and legal representatives of deceased Radhakissen Mohta-appellants--which was claimed to be payable in terms of the 3rd Clause of the terms of settlement as aforesaid after deducting the sum of Rs. 10,000 already paid. The aforesaid amount was claimed to be the value of the shares referred to in the said clause as assessed by Sri G. Basu, the independent valuer, appointed by the Commissioner of Income-tax. To this application for execution an objection was raised again under Section 47 of the Code of Civil Procedure by the present appellants. The objections were manifold but the most substantial grounds of such objections were that the decree under execution was no decree at all, that in any case there had yet not been a final decree for the amount claimed in execution which could be put to execution, that the properties described in the schedule to the tabular statement did not belong to the deceased judgment-debtor Radhakissen Mohta, that premises No. 22 Belvedere Road did not belong to the deceased judgment-debtor and that the value of the shares had not been assessed in terms of Clause 3 of the terms of settlement and as such they were not liable to pay any amount on the valuation as made by Shri G. Basu. This objection was registered as Misc. Case No. 96 of 1955 and it was contested by the present respondent.
6. The learned Subordinate Judge upheld the objection in part and held that premises No. 22 Belvedere Road did not belong to the judgment-debtor Radhakissen Mohta and as such execution cannot be levied against this property; the learned Subordinate Judge held that the goodwill of the firm Ganesh Export and Import Company and the shares of the deceased judgment-debtor in Ganesh Commercial Co. Ltd. would be open to be proceeded against in the execution by the respondent before us. The learned Subordinate Judge further overruled the objection that the decree was not executable and held that the decree is final and is capable of being executed for the value of the shares now claimed. The learned Subordinate Judge further overruled the objection that the valuation of the shares was not made in terms of settlement.
7. It is against this judgment and order of the learned Subordinate Judge that the present appeal has been preferred by the heirs of Radhakissen Mohta. The respondent, however, has not disputed the decision of the court below so far as it had gone against it. Mr. Promotha-nath Mitra, learned Advocate, appearing on behalf of the appellants has taken two points in support of the appeal. In the first place, Mr. Mitra contends that the judgment-debtors's liability to pay the value of the shares in terms of Clause 3 of terms of settlement as above has not yet arisen inasmuch as there has yet not been a proper assessment of the value as contemplated by the terms of settlement. Mr. Mitra puts forward two reasons to support this contention of his. In the first place, Mr. Mitra contends that the valuation could not have been made without an appropriate notice to his clients giving them an opportunity to participate in the proceedings for the assessment of the value and secondly according to Mr. Mitra the value that was agreed to be assessed was present market value of tbe shares but what has been assessed by the assessor Shri G. Basu, is the present intrinsic value of the shares. The second contention raised by Mr. Mitra in support of the appeal is that the decree under execution does not amount to a money decree which is capable of execution in the manner claimed by the respondent, as according to him, the compromise decree does not provide that there would be any decree for money realisable as such in execution.
8. Mr. B.L. Pal, the senior Advocate for the Revenue authorities, has strongly contested both the points raised by Mr. Mitra. Mr. Pal contends that the terms of settlement nowhere provide that the valuation by the independent valuer of the shares is to be made with any notice whatsoever to the appellants; notwithstanding the same Mr. Pal points out from the documentary evidence on record that such assessment of the value was made with proper notice to the appellants and with the appellants participating in the said proceedings through a lawyer. Mr. Pal next contends that Mr. Mitra is not entitled to add or incorporate to the terms of settlement a limitation, namely, that the value that is to be assessed by the independent valuer must be the market value. He contends that if it had been the intention of the parties that the value that is to be assessed would be only market value, it would not have been necessary at all to appoint an independent valuer as such value could have been worked out even by the parties by finding out the prevailing market price of the share. On the other question as to whether the decree under execution is capable of execution or not, Mr. Pal has contended that it amounts to a Money Decree which is capable of execution. Mr. Pal has laid great emphasis on the order of this court made on the petition of compromise which reads as follows:--
'It is ordered and decreed that this appeal he and the same is hereby disposed of in accordance with the terms of settlement annexed to the petition filed and moved in court this day and that the said petition marked with the letter 'B' together with the terms of settlement annexed thereto as annexure 'A' be kept as of record and do form part of this decree and the parties shall and do give effect o and be bound by terms thereof. Dated this 24th day of August in the year of our Lord one thousand nine hundred and forty-nine.
Pramatha Nath Mitra'.
9. Mr. Pal has also contended that the judgment-debtors appellants are not entitled to raise such a question any further as the point is now barred by principles of res judicata by the judgment of the learned Subordinate Judge (Ext. D) in the earlier objections under Section 47 which were registered as Misc. Cases 136 and 137 of 1951.
10. We are, however, not inclined to uphold the first contention raised by Mr. Mitra as, in our opinion, there is no substance in either of the two grounds put forward by Mr. Mitra in support of his first contention. In our opinion, Mr. Pal is perfectly right in his interpretation of Clause 3 of the terms of settlement which left the assessment of the value exclusively in the hands of an independent valuer to be nominated by the Commissioner of Income-tax. There is no dispute that the Commissioner of Income-tax had nominated Shri G. Basu to be the independent valuer to value the shares. The terms of settlement nowhere provide that such valuation has got to be made upon notice to the judgment-debtor or any party whatsoever or after hearing any one in the matter. We are of the opinion that the parties left it to the judgment of an independent valuer whose decision would be binding between the parties. As there is no dispute that Shri G. Basu had since assessed the value on November 12. 1953 as it appears from letter, Ext. G, the parties are bound to act on such valuation.
11. Apart therefrom there is no merit even in the suggestion that Shri G. Basu made the assessment without notice to the judgment-debtors. On the other hand, it appears clear from the correspondence, Ext. C-2 dated September, 5, 1952, Ext. C-3 dated September 26, 1952 that the judgment-debtor's lawyer was being given notice of the proceedings for such assessment and that he was regularly participating in such proceedings, the minutes of the proceedings dated September 5. 1952, Ext. E, gives a complete answer to the objection raised in this account by Mr. Mitra and clearly shows that the valuer Shri G. Basu allowed not only the Revenue Authorities but also the Advocate for the judgment-debtors to participate and put forward their views in the matter of assessment. Therefore in either view of the matter we are of the opinion that there Is no substance in the objection that the valuation, as made by Shri G. Basu, is ineffective because of lack of any notice to the judgment-debtor,
12. We are also of the opinion that there is no substance in the second reason put farward by Mr. Mitra in support of his first contention. The terms of settlement provided that the present value of the shares is to be determined by an independent valuer. We are unable to agree with Mr. Mitra that the terms 'present value' must necessarily mean market value. There is nothing in the terms to support such a contention. On the other hand the terms show that parties left it to the valuer to find out and assess the value of the shares and intended that the valuer should come to a decision as to what the shares were really worth regard being had to all relevant circumstances; the terms did not lay down either any limitation or direction in the matter of assessment by the valuer. It is now well accepted that not only can shares be valued on their selling values in the market, but they can as well be valued on their intrinsic value found out in either 'dividend yield' or 'profit yield' method or in the 'break up value' method. Which of the methods would furnish the proper value depends upon various circumstances. Now in the present case when the parties left the matter to the exclusive arbitration of the valuer it is not open to them to challenge his decision except on the ground of bad faith. Further on the materials on record we are also unable to hold that the valuer was in any way in error in deciding to assess the value in the manner done by him; the objectors have not brought any evidence or material on record to substantiate this objection of theirs now taken in this appeal. We also find justification in Mr. Pal's contention that if it had been the intention of the parties to find out only the market value, there would have been no necessity to appoint an independent valuer because the parties themselves could have found out such value by valuing the shares at the price then prevailing in the market. We are therefore of the opinion that the assessment as made by Shri G. Basu is not open to challenge on this account.
13. Although Mr. Mitra fails in his first contention yet we are, however, of the opinion that there is great substance in the second contention raised by him. Giving anxious consideration to the terms of settlement we have come to the conclusion that the said terms did not provide any decree for the money representing the value of the shares which is capable of execution in the manner claimed by the respondent. It must be remembered that the terms of settlement were entered into in an appeal which arose out of a suit in which the present respondent decree-holder was a defendant; the suit was one for a declaration that a certificate is void and not binding upon the certificate-debtor; the certificate-debtor failed in such a suit and preferred an appeal and there was a compromise on the terms of settlement between the appellant certificate-debtor and the respondent, the Revenue authorities. The terms provided in Clauses 1 and 2 either withdrawal of certain money in deposit by the respondent or payment of certain other sums by the certificate-debtor. The third clause provided assessment of value of certain shares and on such valuation being made, payment of such value ostensibly by the certificate-debtor. Clause 4 provides that the Revenue Authorities would forego all other outstanding demands on payments being made in terms proceeding i.e., clauses 2 and 3. Clause 6 provides that on fulfilment of the earlier clauses the appeal (that is the appeal in which the compromise was entered into) will be withdrawn by the certificate-debtor and that the Revenue Authorities will withdraw the Certificate Case No. 241 I. T. 1945-46. The last paragraph in the terms of settlement is very important which provides as follows:--
'These terms when carried out will mean and include the settlement and termination of all proceedings arising out of the I. T. assessment for the year 1940-41 and E.P.T. assessment for the corresponding C.C.P.'
14. We are of the opinion that Clause 6 and the last paragraph quoted above clearly indicate that the certificate proceedings in Case 241 I. T. of 1945-46 would remain alive until the other party to this compromise makes the payment in terms of the earlier clauses. Clause 4 further indicates that the Revenue Authorities would forego their other claim in certificate proceeding only if the other party makes the payment in accordance with the terms of settlement. We do not consider that by these terms of settlement any decree for money was substituted for the certificate debt nor do the terms amount to a decree by the court for the sums payable under the terms. True, Mr. Pal has laid great emphasis on the decree of this court which provides that the appeal is disposed of in terms of settlement but in our opinion, that does not amount to a position as claimed by Mr. Pal namely that this court passed a decree for the money. According to us under the decree passed on such terms of settlement it was the certificate-debtor who obtained a conditional and partial relief in his suit for avoiding the certificate on his fulfilling the condition of payments as envisaged by the terms. Although the terms of settlement do not provide what would be the result in de-fault of such payment, it is clear that in default the Revenue authorities, i.e., the other party to the settlement, remained entitled to proceed with their original claim as laid in the Certificate Case No. 241 I. T. 1945-46. In our opinion, if the certificate-debtor do not choose to pay off all or any of the amounts payable under the said terms of settlement the Revenue Authorities are not empowered to realise the amounts by execution of the consequent decree passed by this Court on such terms. They can only proceed with their certificate proceedings and realise the entire debt which not only remained alive but capable of execution by virtue of the agreement between the parties as appearing from the terms. We are however unable to hold that the decree on the terms as passed by this Court gave the Revenue Authorities any authority to realise the payments envisaged by the terms by process of execution of the decree as, in our opinion, the decree that was passed was not one for the money payable under the decree; obligation to pay the money was on the certificate-debtor only for the purpose of avoiding the other liabilities under the certificate and if he did not choose to pay, the consequence is that he may be made liable for the entire certificate debt and in the certificate proceedings. The view which we have taken on the interpretation of the decree under execution is in consonance with the Bench decision of the Madras High Court in the case of Narayana Swami Naidu v. Rangaswami Naidu, AIR 1926 Mad 749, though the said decision was dissented from by this Court on other points.
15. On these conclusions of ours we must uphold the second contention of Mr. Mitra and hold that the present execution cannot proceed as there was no executable decree. But we make it clear that we hold as such because, in our opinion, in the consequence of non-payment of the amount contemplated under Clause 5 of the terms of settlement, the Revenue Authorities, the respondent before us, are entitled to proceed with its original certificate proceedings in Certificate Case No. 241 I. T. 1945-46 and for the entire claim levied therein as under the agreement such proceeding was kept alive.
16. In upholding the second contention we have also considered the objection of Mr. Pal that this objection is barred by principles of res judicata. We are however unable to accept this contention of Mr. Pal for the simple reason that his claim of bar of res judicata based as it is on the judgment of the learned Subordinate Judge dated April 16, 1952 in the earlier Misc. Cases under Section 47 of the Code of Civil Procedure cannot be entertained for the simple reason that the present appellants who were the judgment-debtor's objectors in the said proceedings had succeeded and the learned Subordinate Judge had found the execution itself to be not maintainable. Therefore in the facts no finding however adverse against the present appellants who were the successful parties in that litigation can operate as res judicata. Reference may be made in the case of Kumar Pasupati Nath Malia v. Sankariprosad, : AIR1957Cal128 and Midnapur Zamindari Co. v. Naresh, 48 Ind App 49 (AIR 1922 PC 241).
17. On the conclusions as above this appeal must succeed and we therefore allow the appeal, set aside the judgment and order of the learned Subordinate Judge and direct that the execution petition be dismissed as not maintainable. And we further direct that the parties would pay their respective costs.
S.K. Chakbavarti, J.
18. I agree.