S.R. Das Gupta, J.
1. This is an appeal against an order of the Additional Subordinate Judge, Birbhum, holding that the decree-holder shall not be able to execute the decree personally against the respondent. The appellant before us is the decree-holder and the appeal arises out of an objection under Section 47, Civil P. C., filed by the respondent in Money Execution Case No. 3 of 1951.
2. On 8-6-1950 a decree was passed in favour of the appellant for the sum of Rs. 13,833/1/0 against the firm of Contractors' Syndicate and seven partners thereof, one of whom is the present respondent. The decree-holder put the decree into execution by attachment and sale of the personal properties of the partners of the said Syndicate and of the partnership property. The said application for execution was made on 6-5-1951. On 14-11-1951, the respondent before us put in an objection to the said execution. The respondent raised various grounds of objection before the executing Court, One of such grounds was that the decree was an ex parte decree and when the respondent was about to start a proceeding under Order 9, Rule 9, Civil P. C., the decree-holder with the consent of the objector referred this matter to his lawyer and it was finally settled and agreed between the parties that the decree-holder would execute the decree against the firm and would not proceed to execute the same personally against the objector.
In support of the said ground the respondent (objector in the execution case) relied upon a written deed of agreement ('ekramama') executed by the decree-holder. The said agreement, according to the objector, was kept in the custody of the decree-holder's pleader Sri Krishnadas Mazumdar of Rampurhat. The said deed of agreement ('ekrarnama) has been produced and proved in the said execution ease, and it is necessary to refer to the terms thereof. It is signed by the decree-holder. It recites that the decree-holder has obtained decree for Rs. 13,833-1-0 in the Additional Court of the Subordinate Judge, Suri, against the objector as a partner of the Syndicate as also other partners thereof. It then states that although the said decree is enforceable against the objector, he has retired long ago from the said partnership business, and as he requested the decree-holder not to attach and sell his own personal movable and immovable properties in execution of his said decree against him personally, the decree-holder promises that he shall not hereafter be entitled to execute the said decree against the objector, nor to make a prayer for his arrest nor to pray for permission under Order 21, Rule 50, Civil P. C. That this document was signed by the decree-holder is not disputed.
The objector contended before the lower Court that in view of the said agreement there cannot be any execution proceedings against him and the present execution proceedings should be dismissed. It appears that at the hearing of the objection the decree-holder gave evidence before the Subordinate Judge at Suri. In the course of his evidence he stated as follows:
'I executed this agreement. It was kept with Krishna Das Baboo. I had the talk with Baidyanath to the effect that they would not make the bill ready for payment by C. P. W. D. and for that Baidyanath, Kiriti and Nilmani would bear the expenses and if they would get the bill ready then I would not execute the decree against Baidyanath personally. After his talk I executed the agreement. The agreement waskept with Kiriti Baboo as now I could make itover to Baidyanath Baboo without getting thebill ready.'
On behalf of the objector some witnesses were examined. The objector himself also gave evidence before the lower Court. According to his evidence the agreement in question was executed under the following circumstances. The decree-holder had obtained an ex parte decree against him. On that very day when the ex parte decree was passed the objector had come late in the Court and he was about to file an application for setting aside the ex parte decree. The decree-holder and his pleader then told him that there was no necessity for filing any re-hearing case as the decree passed could not be executed against him personally. Then there was a talk for writing out an agreement and it was written on that date. The document was kept in the custody of Krishnadas Babu, pleader.
3. The learned Subordinate Judge after hearing the evidence given by the parties came to the conclusion that the case of the objector was true. He did not accept the case of the decree-holder and he allowed the petition of the objector and ordered that the decree-holder shall not be able to execute the decree personally against him. It is against that order that the present appeal has been filed to this Court.
4. The learned Advocate appearing on behalf of the appellant (decree-holder) contended before us that the case of the objector, even if it is accepted, would amount to an adjustment of the decree, but that adjustment was not recorded. That being so, the executing Court could not take any notice of the said adjustment. He referred us to the provisions of Order 21, Rules 1 and 2, Civil P. C.
5. The learned Advocate for the respondent, on the other hand, contended that the agreement in question was not an adjustment within the meaning of Order 21, Rules 1 and 2 of the Code. In the second place, the learned Advocate contended that the adjustment in question was brought to the notice of the Court by the decree-holder inasmuch as the decree-holder in his evidence before the Court admitted that he executed this agreement. It may be, the learned Advocate contended, that the decree-holder's case was that the agreement would not be effective unless certain conditions as mentioned in his evidence were fulfilled. But the fact of the adjustment of the decree was admitted by the decree-holder. That being so, the Court was, in view of the provisions of Order 21, Rule 1, Civil P. C., bound to record the adjustment. The learned Advocate further contended before us that the Court was, in the circumstances, entitled to enquire into the question as to what the terms of the adjustment were. Were they as contended by the objector or were they as stated by the decree-holder? Whatever conclusion the Court would come to on such enquiry regarding the terms of the adjustment the Court should record the same.
6. With regard to the first contention of the learned Advocate for the respondent, namely, that there was no adjustment within the meaning of Order 21, Rule 2 of the Code, we are of opinion that the same cannot be accepted as sound. Order 21,Rule 2, Sub-rule (3), Civil P. C., lays down that where any money payable under a decree is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly. In our opinion, if there are number of judgment-debtors and if the decree-holder settles his claim under the decree with one of such judgment-debtors, then it must be held that the decree has been adjusted in part. This view finds support from the following decisions cited before us: -- 'Dina Misra v. Ramdas Tiwary AIR 1933 Pat 576 (A); -- 'Mahomed Khan Bahadur v .Mahomed Munawar Sahib', 31 Mad 467 (B). The contention of the learned Advocate for the respondent on this point must, in our opinion, be overruled.
7. We now come to the real question raised in this appeal, namely, could the learned Judge go into the question, of adjustment as alleged by the judgment-debtor? In other words, the adjustment as alleged by the judgment-debtor not having been recorded, was the Judge prevented by the provisions of Order 21, Rule 2, Sub-rules (1) and (2) of the Code from taking any notice of the said adjustment in deciding whether or not the application for execution should be allowed?
I have already referred to Sub-rule (1) of Rule 2 of Order 21, Civil P. C. The effect of the said sub-rule is that where the decree is adjusted in whole or in part, it is the duty of the decree-holder to certify such adjustment to the Court and thereupon the Court shall record the same. The effect of Sub-rule (2) of Rule 2 is that if the decree-holder does not apply then the judgment-debtor may apply to the Court to have the said adjustment recorded. In the first case, that is, where the decree-holder certifies to the Court that there has been an adjustment, there is no period of limitation, and the Court is bound to record an adjustment whenever brought to its notice by the decree-holder. But where the judgment-debtor applies under Sub-rule (2) of Rule 2 of Order 21, there is a period of limitation and the application must be made within ninety days from the date of such adjustment.
Now, in this case, the petition of objection filed by the respondent in the execution proceedings, even if it is treated as an application to have the adjustment recorded, has been made more than ninety days from the date when the alleged adjustment took place. Therefore the said objection, if it be treated as an application for recording the adjustment, should be dismissed as the same has been made beyond the period of limitation. Upto this point the contention of the learned Advocate for the appellant should be accepted. But the matter does not rest here. If there was nothing else on the record except the objection of the judgment-debtor, which in substance is that the decree has been adjusted by an agreement, then certainly the subordinate Judge could not take any notice of the said adjustment and could not entertain the said objection. But in this case, the decree-holder himself has stated in his evidence before thelearned Judge that he had signed this agreement. In other words, the decree-holder himself has certified that there has been an agreement adjusting the decree. If that is so, then the provisions of Sub-rule (1) of Rule 2 of Order 21, Civil P. C., at once applies, and the Court is bound to record ' the adjustment.
The question is what the terms of that adjustment were. On this point there is dispute between the judgment-debtor and the decree-holder. In such circumstances, the Court, in our opinion, can go into the question, and in fact it is its duty to do so, as to what the terms of the adjustment were, and record the adjustment as it finds it after such enquiry. We cannot accept the contention of the learned Advocate for the appellant that if the terms of the adjustment set up by the decree-holder differ from those set up by the judgment-debtor, then the Court cannot go into the question as to what tho terms were. The learned Advocate's contention is that the Court can record only that adjustment which the decree-holder says has been arrived at between the parties. We are unable to accept that contention.
In our opinion, once it is brought to the notice of the Court by the decree-holder, or by the judgment-debtor within the period of limitation, that an agreement has been arrived at between the parties adjusting the decree, the Court should for the purpose of recording such adjustment go into the question as to what the terms of that adjustment were. We cannot accept the view that the Court must in such a case either record the adjustment as stated by the decree-holder or none at all. The Court, in our opinion, can ascertain the terms of the said adjustment and record the same.
In this case, it is the common case of both the parties that there was an agreement between the parties. The only dispute is as to the terms of such agreement. The Court in such a case, in our opinion, should go into the question as to what the terms of the agreement were and record the adjustment as it finds it after such enquiry. The contention of the learned Advocate for the respondent on this point should, in our opinion, be accepted.
The learned Advocate for the respondent in support of his said contention relied on the case of -- 'Chinna Mummidi Royal v. Somasekara : AIR1929Mad783 (C). What happened in that case was that the decree-holder put in a petition for execution and he stated in the said petition that' payments had been made from time to time but they were for the period previous to 1-3-1922 and the maintenance from 1-3-1922 to 1-3-1925 was due. The case of the judgment-debtor was that the payments were made towards the arrears of maintenance for the period between 1-3-1922 to 1-3-1925. Their Lordships held that in such circumstances the Court shall not be precluded from inquiring into the fact of the payment even though there is no direct certification under Rule 2.
The judgment-debtor in the present case stands on a much stronger ground than the judgment-debtor in that Madras Case. In this case there is clear statement by the decree-holder that there wasan agreement between the parties and the only question is what the terms of the agreement were. The Court, in such circumstances, is not precluded from inquiring into the terms of the said agreement. On full consideration of the matter, we are of opinion that the lower Court was entitled to go into the question as to what the terms of the adjustment were and to record the same.
8. But the lower Court did not consider the matter from this point of view. In other words, the lower Court did not proceed to record the adjustment or to find out in such proceedings what the terms of the said adjustment were. The lower Court simply considered the objection of judgment-debtor on its merits and gave its decision thereon. No doubt in the course of such proceedings the question as to what the terms of agreement between the parties were had to be gone into but the lower Court did not consider the matter from the point of view as to whether or not the adjustment should be recorded under Order 21, Rule 2, Sub-rule (1), Civil P. C.
In our view, the correct order to make would be to dismiss the objection filed by the respondent before the lower Court. The lower Court should have held that the adjustment not being certified and the application, which in effect asks the Court to record the said adjustment, having been made more tha'n ninety days from the date of the said adjustment, the same could not be entertained by the Court. But the decree-holder having admitted before the Court and thereby brought to the notice of or certified to the Court that there was an agreement between the parties adjusting the decree and having admitted that he signed the document, on which the judgment-debtor also relied, the Court should have held that the decree-holder had certified the adjustment to the Court and should have proceeded to record the said adjustment under Order 21, Rule 2, Sub-rule (1). In such proceedings the lower Court should have gone into the Question as to what the terms of the adjustment were.
9. In the premises we order that the appeal shall be disposed of in the following terms:
10. The matter will be sent back to the lower Court, the order of the Subordinate Judge allowing the objection is set aside and the objection of the judgment-debtor is rejected. We direct the lower Court to inquire into the question as to what the terms of the agreement between the parties were and after finding what the terms were, to record the same under Order 21, Rule 2, Sub-rule (1), Civil P. C.
11. The costs of both parties of this appeal and of the lower Court in this proceeding upto this stage should abide by the result of the finding to be arrived at on such further inquiry, the hearing fee in this appeal is assessed at two gold mohurs.
12. The appellant will be entitled, if he so desires, to file a statement before the lower Court stating what according to him were the terms of the agreement which had been arrived at between the parties, and both the parties will be entitled to adduce before the Court below such evidence as they may intend to call in support of their respective cases, The respondent will be entitled to filehis statement in reply to the statement filed by the appellant setting out the terms of the agreement which, according to him, were arrived at between the parties.