Banko Das vs Oddi Arjun Subudhi and Others

Shearer, J.—Miscellaneous Appeal No. 39 of 1941, arises out of an order of the learned Munsif of Berhampore, made under Order 21, Rule 2, Civil P.C., recording an adjustment of a decree. The decree in question was passed on compromise in a mortgage suit on 31st July 1930. Under the terms of that decree, the mortgagee, who is the appellant here, was to remain in possession of certain property until he was paid a sum of Rs. 950. This sum was to be paid in two instalments in the course of 1340 fasli. The decree provided that, if payment was not made on the dates stipulated, the amount was to carry interest. The judgment-debtors under the decree made no payments, but, soon after the expiration of 1340 fasli, attempted to take possession of the land. The decree-holder then instituted a suit asking for an injunction to restrain them from doing so, and this suit was decreed. This was in 1936.

Some two or three years later, the judgment-debtors, according to the decree-holder, again attempted to oust him, and he, therefore, applied to the Court, asking that they should be committed to prison and that he should be awarded compensation for certain crops which they had taken away. Notice was issued on the judgment-debtors, and the two applications were set down for hearing on 16th December 1939. On that date, an application was made for an adjournment, and the cases were adjourned for one week.

The learned Munsif then recorded evidence, but reserved judgment. Before judgment was delivered, a petition was put in by the judgment-debtors, asserting that a compromise had been entered into between the decree-holder and themselves, and asking that this compromise should be recorded. The learned Munsif eventually made such an order, and dismissed the applications asking that the judgment-debtors should be committed to prison and should be compelled to pay damages to the decree-holder for having removed certain crops of his. Miscellaneous Appeals Nos. 37 and 38 arise out of the orders dismissing these applications.

In the petition, which was put in by the judgment-debtors on 20th January 1940, it was stated that the decree-holder had agreed to accept Rs. 950 in lieu of the amount due to him under the decree, that is, he had relinquished any claim to interest. It was, further stated that Rs. 300 had been paid to the decree-holder and that the balance was to be paid by 15th January 1940. At the hearing of the application, it was asserted by the judgment-debtors that a mistake had been made by the draftsman of this petition, and, instead of 15th January 1940, the draftsman should have entered 15th June 1940.

The evidence on this point was not accepted by the Courts below, and it is, I think, quite impossible to accept it. Mr. P.C. Chatterji, for the respondents, did not press the point, but contented himself with saying that in any event, time was not of the essence of the contract. I am, by no means, sure myself that this was so, but, in the view which I take of the matter, the point is not really material. The contention, put forward by Mr. P.V.B. Rao, for the decree-holder, is that there was no completed adjustment of the decree: The rights and liabilities of the parties to the decree were, Mr. Rao said, not extinguished, nor, indeed, in any way, affected by this agreement. Substantially, the agreement was merely this that, if the judgment-debtors paid another Es. 650 to the decree-holder on or before 15th January 1940, the decree-holder in his turn, would intimate to the Court that his decree had been fully satisfied and would put the judgment-debtors in possession of the land.

6 Mr. Chatterji, for the respondents, contended that the decision in Satyabadi Sahu and Others Vs. Mani Sahu, was applicable. In that case, in a suit instituted on a bahi-khata account, a compromise had been entered into, under which the defendants were to pay a sum of RS. 11,500. Subsequently, another arrangement was come to between the decree-holder and the judgment-debtors, under which the judgment-debtors, instead of paying the decree-holder so much money, were to assign certain property to him. It was argued on behalf of the decree-holder, who sought to repudiate this agreement, that there was no adjustment as, what the contract alleged was to do something in the future. That argument was negatived, the learned Chief Justice observing:

By the fresh agreement we do not find a modification of an old agreement but merely that it is agreed that the decree-holder shall abandon his rights under the decree.

The point raised in Keshab Prusti and Others Vs. Ananta Mahanty and Others, came before a Full Bench of the Lahore High Court in Udham Singh v. Atma Singh AIR 1941 Lah. 149 . In his judgment in that case, Young C.J. said:

It appears to me therefore that on a consideration of these authorities the correct view appears to be that if there is a completed contract, which immediately extinguishes and takes the place of the decree, that contract is an adjustment within the meaning of Order 21, Rule 2., If, on the other hand, there is only an agreement to adjust the decree on the fulfilment of a future condition and the decree is still left in existence pending the fulfilment of the condition, then there is no adjustment.

It. is, to my mind, perfectly clear that the agreement, with which we are now concerned, falls under the latter category, and does not and cannot fall under the former category. When he agreed to relinquish claim to interest and accept Rs. 950 the decree-holder did not relinquish any of his other rights under the decree. All that he agreed to was that, if the balance of Rs. 950 was paid to him on or before 15th January 1940, he would vacate the land. Clearly, unless and until payment was made by the judgment-debtors, they were not entitled to possession of the land, that is, their liability under this decree continued.

The Courts below were thus, in my opinion, in error in recording this compromise. The miscellaneous appeals will be allowed with costs; the order appealed against in Miscellaneous Appeal No. 39 of 1941 will be set aside; arid the applications, which are the subject-matter of Miscellaneous Appeals Nos. 37 and 38 of 1941, must, now, be disposed of by the learned Munsif in accordance with law.

10 There will be one set of hearing-fees in the three appeals.