1. This is an appeal on behalf of the decree-holders against an order by which the Court of Appeal below in reversal of the order of the Court of first instance has dismissed an application for execution of a decree, made on the 20th May 1903. It appears that the decree was executed on a previous occasion when the properties of the judgment-debtors were sold. To the present execution, taken out on the 19th May 1909, objection was raised by the judgment-debtors that the decree had been adjusted out of Court, and could not be enforced any longer. The Court of first instance overruled this objection on the ground, amongst others, that the adjustment had not been certified to the executing Court within the time prescribed by law.
2. Upon appeal, the Subordinate Judge has held that no question of limitation arises, because the judgment-debtors were kept out of the knowledge of their right to have the adjustment certified by the fraud of the decree-holders; in support of this view, he has placed reliance upon the case of Gadadhar Pande v. Shyamchurn Naik 12 C.W.N. 485. The judgment of the Subordinate Judge, on the merits of the case, is not quite intelligible; but he appears to have held that the decree has been adjusted, although, in his view, one of the most important conditions of the settlement still remains unperformed by the judgment-debtors.
3. The decree-holders have now appealed to this Court and on their behalf it has been contended, upon the authority of the cases of Ram Doyal Banerjee v. Ram Hari Pal. 20 C. 32 and Ana Muna Veeno Rana v. Ponnayya 17 M.L.J. 527 that the decree has not been adjusted, and, that, in any event, so long as the adjustment has not been certified to the execution Court, the decree-holders are entitled to proceed with execution. In our opinion, there is no room for controversy that the order of the Subordinate Judge cannot be supported.
4. It cannot be disputed that no adjustment of the decree has yet been certified to the executing Court. The position taken up by the judgment-debtors in this Court is inconsistent with the position they assumed in the Courts below. Their contention in the original Court as also in the Court of Appeal below was that the decree had, as a matter of fact, been adjusted, because only two things were required to be performed by them, namely, first, payment of Rs. 200 to the decree-holders, and, secondly, execution of an instalment bond in their favour for the balance of the judgment-debt. The judgment-debtors contended in the Court below that they had completely performed their part of the agreement, and that notwithstanding this the decree-holders had fraudulently omitted to certify the adjustment to the execution Court. It is manifest, however, from the facts found by the Subordinate Judge, as also from the arguments addressed to us in this Court, that there was a third condition to be performed by the judgment-debtors, namely, the execution of a kabuliyat in favour of the landlords in accordance with the proposed terms of settlement contained in Exhibit A. It has been suggested that the judgment-debtors have not been able to execute this kabuliyat because the quantity of land and the rent assessable thereon were not determined by the landlords. But even if this be true it is clear that the decree has not yet been adjusted. As the learned Vakil for the appellants rightly put it, there were proposals for an adjustment. One of the suggested terms was that Rs. 200 should be paid and upon receipt of this sum, the decree-holders would agree to a reversal of the execution sale which would otherwise be confirmed in ordinary course; this has been done. Another term of the proposed settlement was that the judgment-debtors should execute an instalment bond in favour of the landlords; this condition also it has been found, has been performed by them. But the last and possibly the most important condition yet remains unperformed, namely, the execution of the kabuliyat. Consequently, as there has not yet been any final adjustment of the decree, the decree-holders are entitled to proceed with execution. But in view of the facts brought to our notice, we think, in the interests of justice that although this appeal must be allowed and the order of the, Subordinate Judge reversed, yet an opportunity should be afforded to the judgment-debtors to execute the kabuliyat in favour of their landlords according to the proposed settlement.
5. The result, therefore, is that this appeal is allowed, the order of the Subordinate Judge set aside and the case remanded to the Court of first instance. Execution will be stayed for three months after the receipt of the record in that Court; meanwhile the judgment-debtors will be at liberty to execute the kabuliyat in accordance with the terms mentioned in Exhibit A. If, for any reason, the kabultyat is not executed, the decree-holders will be at liberty to execute the decree.
6. The appellants are entitled to their costs both here and in the Court of Appeal below. We assess the hearing fee in this Court at two gold mohurs.