1. This appeal by Bimala Bala Debt who was the landlady in respect of certain premises arises out of an application under Sec. 47 C.P.C. filed by Bata Krishna Das Ghose, the present respondent. The relevant facts are briefly as follows: On 19-9-51 the present appellant obtained an ex parte decree against the respondent in respect of the disputed premises, and she started execution proceedings. The present respondent, however, filed an application under Order 9, rule 13 C.P.C. for setting aside the ex parte decree. That application was dismissed by the trial court. Against that decision an appeal was preferred by the present respondent and arguments were heard on 5-7-52, On 10-7-52 judgment was delivered by the appellate court dismissing the appeal. On 11-7-52 the present respondent filed an application under section 47 O.P.O. praying for dismissal of the execution case alleging adjustment of the decree on 6-7-52. This application was dismissed by the trial court. The lower appellate court, however, reversed the decision of the trial court and accordingly the landlady decree-holder who was the opposite party in the Miscellaneous Case under sec. 47 C.P.C. has preferred this appeal.
2. Certain points of law have been canvassed before me on behalf of the appellant. It has also been argued that the judgment of the lower appellate court is not a proper judgment of reversal and it has been suggested that if the points of law urged on behalf of the appellant are decided against her, the case should be sent back on re-mand for re-hearing of the appeal according to law.
3. Before dealing with the points of law canvassed before me I propose to deal with the argument on behalf of the appellant as to whether the judgment of the lower appellate court can be saidto be a proper judgment of reversal. So far as this point is concerned, on going through the judgments of the courts below as also taking into consideration the salient points in the evidence ad-duced by the parties in this case I have no manner of doubt in my mind that the judgment of the lower appellate court cannot be said to be a proper judgment of reversal. The learned subordinate Judge who heard the appeal has chosen to reverse the finding of fact arrived at by the trial court regarding the alleged adjustment without referring to the evidence of the husband and the father of the present appellant at all. These gentlemen had supported the case of the appellant to the effect that there was no adjustment as alleged by the present respondent. Quite apart from this the lower appellate court seems to have thought that there was discrepancy among the witnesses examined on behalf of the present respondent only in respect of a minor detail. Even a cursory glance, however, at the evidence of those witnesses shows that there are discrepancies on many points and not only on one point. Then, again, this was pre-eminently a case which had to be considered in the light of probabilities. This aspect of the case, however, was also not considered by the lower appellate court. In these circumstances I cannot but hold that the decision of the lower appellate court on the material question of fact, namely, whether there was an adjustment or not, cannot be said to have been properly arrived at by the final court of facts and if the decision of this Court be against the contention of the appellant on points of law, there would be no option but to remand the case to the lower appellate court for re-hearing of the appeal.
4. This brings me to the points of law which have been urged before me on behalf of the appellant. It is only fair to the courts below to observe that these points of law were not canvassed in either of the courts below and that is the reason why they are not referred to at all in the judgments of those courts.
5. It has been argued on behalf of the appellant that as the alleged adjustment of the decree had not been certified, it was not competent to the execution court to allow credit for uncertified payments. In this connection reference has been made to the case of Bajrang Behari Lal v. Lachmi Narain 13 Ind Gas 944 (Cal) (A) and to the cases of Jogendra Prosad Mitra v. Asutosh Goswami AIR 1917 Cal 422 (B) and Azizur Rahman Chou-dhury v. Aliraja Choudhury : AIR1928Cal527 . This contention receives support from the provisions of Order 21, rule 2 (3) C.P.C. as well according to which a payment or adjustment which has not been certified or recorded shall not be recognised by any court executing the decree. It was contended, however, on behalf of the respondent that, as according to his case, by virtue of the agreement between the present appellant and the respondent arrived at on 6-7-52 it was settled that the execution of the decree would not be proceeded with further, there was execution on full satisfaction of the decree and it was not a case of adjustment at all so as to attract the operation of Order 21, rule 2 C. P. C. I am unable, however, to accept this contention, Adjustment of a decree is a transaction which extinguishes a decree in whole or in part. It cannot be held, therefore, that simply because according to the case of the respondent there was no question of further execution of the decree, it cannot be said that it was not a case of adjustment of the decree within the meaning of Order 21, rule 2 O. P.O.
6. It has next been contended on behalf of the respondent that even though the application filed by the respondent was described as one under sec, 47 C.P.C., it may very well be treated to be one under Order 21, rule 2 C. P. C. and accordingly adjustment of the decree can be certified or recorded in the present execution proceedings especially when there is no question of limitation involved in the present case, the application under Section 47 C.P.O. having been filed long before the expiry of 90 days from the date of the alleged adjustment. In this connection reliance has been placed inter alia upon the case of Chandi Charan v. Panchanan Pandit, ILR 9 Pat 521: (AIR 1930 Pat 526) (D) as also upon certain observations in the case of Gobardhan Das v. Dau Dayal : AIR1932All273 . If this contention is accepted, there are further difficulties in the way of the respondent. If the application filed, on 11-7-52 be treated to be one under Order 21, rule 2 C.P.O. no appeal against the decision of the trial court upon that application will lie in view of the provisions of Order 43, rule 1 with the result that the decision of the trial court dismissing the application would stand. In order to get out of this difficulty it was suggested, however, on behalf of the respondent that as the application was under sec. 47 C.P.O., an appeal against it was competent, even though it might be treated in substance to be an application under Order 21, rule 2 C. P. C. I am of opinion that this argument as well cannot be upheld. The application filed by the present respondent on 11-7-52 has to be treated either on the footing that it was an application tinder sec. 47 C.P.O. which it purported to be or it was an application under Order 21, rule 2 which it is suggested now it actually was and the necessary legal consequences will follow accordingly as it is one or the other: it cannot, however, be treated as an application both under sec. 47 O.P.O. and under Order 21, rule 2 C.P.C. so as to have the benefit of both. This is one aspect of the matter. The matter can be looked at from another standpoint, if the application filed on 11-7-52 be treated to be an application under Order 21, rule 2, it has to be seen whether by this application the present respondent was seeking to create some new right not given by the decree under execution. It has been contended on behalf of the appellant that the allegations made in the application itself show that the present respondent was trying to claim a new right beyond the terms in the decree and that he was in effect claiming a new tenancy of Rs. 28/-per mensem, the original tenancy being one of Rs. 22/- per mensem. In support of this contention on behalf of the appellant reference has been made to certain observations in the decision of the Judicial Committee in the case of Pradyumna Kumar Mullick v. Kumar Dinendra Mullick 41 Cal. WN 1093: (AIR 1937 P.O. 256) (F) and to the case of the Oudh Commercial Bank Ltd. v. Thakurain Bind Basni Kuer and it was argued that by his application dated 11-7-52 the present respondent was making an attempt to bring under the decree under execution a liability extraneous to the decree and that being so, it could not be covered by Order 21, rule 2 C.P.C.
I am of opinion that there is substance in this contention. The learned Advocate for the respondent drew my attention, however, to certain observations made by their Lordships of the Judicial Committee in the Oudh Commercial Bante case (G) referred to above. These observations have been quoted in the case of Pattu Kumari Bibi v. Nirmal Kumar Singh Nowlakha. : AIR1939Cal569 of the report. These observations, however, do not assist the respondent in view of the fact that we are proceeding on the assumption that the application dated 11-7-52 was one under Order 21, rule 2 C.P.C. and not under Section 47 C.P.C. In any view of the matter, therefore, whether the application filed on 11-7-52 was one under Section 47 or one under Order 21, rule 2, it was, in my opinion, bound to fail in respect of the question whether there was in fact the alleged agreement between the parties on 6-7-52.
7. Another point which was urged before me on. behalf of the appellant was that the alleged oral agreement said to have been arrived at on 6-7-52 offended against the terms of Section 92 of the Indian Evidence Act. In this connection reliance was placed inter alia upon the case of R. D. K. Venkatalingama Nayanim Bahadur v. Rao Muni Venkatadri Rao AIR 1927 Mad 911 (1). I do not propose, however, to express any opinion regarding the merits of this particular contention.
8. In the result, the appeal is allowed withcosts. The judgment and decree of the lower appellate court are set aside and the applicationdated 11-7-52 in Misc. Case No. 58 of 1952 is dismissed.