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Kurani Debya Vs. Jogamaya Debya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1936Cal518
AppellantKurani Debya
RespondentJogamaya Debya
Cases ReferredAzizur Rahaman v. Aliraja
Excerpt:
- .....decree passed in the year 1924, and evidenced an adjustment of the same to the satisfaction of the decreeholder, and we are unable, therefore, to express agreement with the view taken by the court of appeal below that the decision of this court in azizur rahaman v. aliraja 1928 cal 527 was applicable to the facts of this case admits the conclusion that the application for execution made by the decree-holder, appellant, on 4th february 1933, was barred by limitation. in the result, the appeal is allowed, the order of the court of appeal below, against which it directed, is set aside. the order of the court of execution passed on 12th december 1934, is restored. the judgment-debtor, respondent, is to pay the costs of the decree-holder appellant through out, including the costs of this.....
Judgment:

1. This appeal has arisen out of a proceeding in execution of a decree. The decree-holder, appellant in this Court, applied for execution of the decree passed in the year 1924, which provided for satisfaction of the decretal debt by instalments; the execution was applied for in the year 1928, on default in the payment of two instalments as provided in the decree. In the course of the proceeding in execution, started in the year 1928, there was a compromise arrived at between the decree-holder and the judgment-debtor, providing for satisfaction of the decree passed in the year 1924. The order recorded in the order sheet on 8th April 1929 was to this effect:

Both parties filed a joint petition of compromise, let the terms of compromise be recorded in the register of suits and the execution case be dismissed on part satisfaction crediting Rs. 100 in the decree.

2. Subsequent to that, there were two payments made by the judgment-debtor on 12th February 1930, and on 12th February 1931, according to the instalments provided by the compromise mentioned above. Thereafter the entire decretal amount fell due on 14th February 1932, as provided by the compromise; and application for execution was made by the decree-holder on 4th February 1933. The judgment-debtor resisted the proceeding in execution on the ground of limitation, by means of an application under Section 47, Civil P. C. The Court of execution overruled the objection to the execution as raised by the judgment-debtor; the decision of that Court was, however, reversed on appeal by the learned District Judge of Nadia. Hence this appeal by the decree-holder.

3. The decision of the question raised in the case before us rests on the determination of the real scope and operation of the compromise effected between the decree-holder and the judgment-debtor filed in Court on 8th April 1929, by which the manner and method of the satisfaction of the decree passed in the year 1924, was provided for afresh by consent of parties. If the compromise amounted to an adjustment of the decree passed in the year 1924, as contemplated by Order 21, Rule 2, Code of Civil Procedure, there was, and could be, no question of limitation involved in the case; and the execution started on 4th February 1933 could not be held to be barred by limitation. An act of the parties agreeing to vary the decree is not an adjustment of the decree; but an arrangement made by a judgment-debtor with a decree-holder providing for the satisfaction of a decree which differs from the one mentioned in the decree itself is not a variation of the decree directing payment of money, but was merely an adjustment to the satisfaction of the decree-holder as contemplated by Order 21, Rule 2 (1), Civil P. C. In the case before us, the effect of the arrangment of 8th April 1929 was that the decree-holder agreed to the arrangement for adjustment and satisfaction of the decree, proposed by the judgment-debtor; and the decree-holder was thus debarred from proceeding with her decree otherwise than in the manner provided by the compromise.

4. We have come to the conclusion that on the terms of the compromise petition filed in Court in the case, at a stage when proceeding in execution in the manner provided in the decree passed in the year 1924 was pending, amounted to an adjustment of the decree in part to the satisfaction of the decree-holder within the meaning of Order 21, Rule 2, Civil P. C., and we are unable to agree with the District Judge in the Court of appeal below, that the order passed by the executing Court on the compromise petition was illegal and could not be given effect to, as, in our opinion, the order gave effect to an adjustment of the decree passed in the year 1924, by consent of parties, as evidenced by joint petition of compromise filed in Court. The payments made in accordance with the terms of the compromise petition were, in our judgment, by way of adjustment of a decree as contemplated by law, and the compromise did not create a decree at variance with the original decree passed in 1924. As indicated above the question for consideration in the case before us is solely one of construction, depending on the scope and effect of the compromise between the decree-holder and the judgment-debtor, regard being had to the intention of the parties, expressed in the same.

5. The compromise provided for satisfaction of the decree passed in the year 1924, and evidenced an adjustment of the same to the satisfaction of the decreeholder, and we are unable, therefore, to express agreement with the view taken by the Court of appeal below that the decision of this Court in Azizur Rahaman v. Aliraja 1928 Cal 527 was applicable to the facts of this case admits the conclusion that the application for execution made by the decree-holder, appellant, on 4th February 1933, was barred by limitation. In the result, the appeal is allowed, the order of the Court of appeal below, against which it directed, is set aside. The order of the Court of execution passed on 12th December 1934, is restored. The judgment-debtor, respondent, is to pay the costs of the decree-holder appellant through out, including the costs of this appeal. The hearing fee in this appeal is assessed at two gold mohurs.


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