Lodd Govindoss vs Ramdoss Vishnudoss

This case comes before us in a somewhat curious form. It is an appeal by the judgment-debtor against an order of Mr. Justice Bakewell,

dismissing an application by the judgment-creditor''s alleged legal representative for an order in the terms of an alleged compromise, which

modified the terms of a decree which had been obtained by the judgment-creditor. Mr. Justice Bakewell dismissed the application on the ground

that Order XXIII did not apply to execution proceedings, (See Rule 4). We agree with Mr. Justice Bakewell. Mr. Justice Bakewell also referred

to Order XXI, Rule 2 and he held, with regard to this rule, that, as it relates only to payment or adjustment of a decree and a record thereof being

made by the Court, it appeared to negative the recognition by the executing Court of anything less than the payment or adjustment. Before us the

argument has turned upon the construction of Order XXI, Rule 2(1) and it has been contended, on behalf of the judgment-debtor, that Mr. Justice

Bakewell was wrong in the circumstances of this case in declining to direct an inquiry as to the terms of the alleged compromise which, under the

Judge''s summons taken out by the judgment-creditor, the Court was asked to record as an adjustment under Order XXI, Rule 2(1). When the

Judge''s summons came on an earlier occasion before Mr. Justice Bakewell, application was made for an adjournment in order that oral evidence

might be taken on the question of the compromise. We are told that this application was made by both parties. Mr. Justice Bakewell''s note does

not show whether the application was made by the judgment-creditor or on behalf of both parties. But for the purposes of the question to be

decided, it seems to us immaterial whether the application was a joint application or was made by the judgment-creditor on his own behalf. Now it

is contended on behalf of the judgment-debtor that, in view of this application, the judgment-creditor is not now entitled to say: ""I will take the

benefit of Mr. Justice Bakewell''s order dismissing the application and will not press for an inquiry as to the terms of the compromise."" It was also

contended that Mr. Justice Bakewell was wrong in not inquiring into the terms of the alleged compromise. It is common ground that, when the

summons eventually came on before Mr. Justice Bakewell, the parties were at issue as to what were the terms of an alleged compromise. The

judgment-creditor was willing that the adjustment should be recorded if it embodied the compromise according to his version; the judgment-debtor

was willing that the adjustment should be recorded if it embodied the terms of the compromise according to the judgment-debtor''s version. In this

state of things, we do not think that the judgment-debtor is entitled to ask the learned Judge to go into the question of what the terms of the

compromise in fact were. Mr. Seshachariar on behalf of the judgment-debtor has called our attention to various authorities; but no case has been

cited to us where an order has been made for an inquiry as to what were the terms of an alleged compromise on the application of the judgment-

creditor under Order XXI, Rule 2. The cases cited would seem to be cases where the judgment-creditor had applied for execution and the

judgment-debtor has asked for an inquiry as to the terms of the compromise upon which he relies by way of answer to the application for

execution. That, of course, is a very different case from this. The fact that in the first instance the creditor asked for an order that the terms of the

compromise might be inquired into, cannot, of course, give the learned Judge jurisdiction to deal with the matter, if, on the true construction of

Order XXI, Rule 2(1), he had no jurisdiction; and the fact that the learned Judge adjourned the summons for evidence to be taken as to the alleged

compromise does not, of course, give him jurisdiction. We are asked on behalf of the judgment-debtor to treat his affidavit as a substantive

application under Order XXI, Rule 2 and we have been referred to the case of Alathoor Budr-ud-deen v. Golam Moideen (1911) 2 M.W.N. 473

where in a proceeding under the old Section 258, the Court was asked to treat the counter-petition of a judgment-debtor as an application to

compel the judgment-creditors to certify the adjustment. The learned Judges say: ""We might be inclined to accede to this request if there was

anything before us to show that the counter-petition was put in within the time allowed to the judgment-debtors by the Limitation Act; but we do

not feel disposed to grant the indulgence to the judgment-debtor of treating his counter-affidavit as a substantive application under Order XXI,

Rule 2(2)."" The observation of the learned Judges in Alathoor Budr-ud-deen v. Gulam Moideen (1911) 2 M.W.N. 473 has reference to the facts

of that particular case. To treat the affidavit as an application is to ignore the express language of Order XXI, Rule 2(2), which requires a notice to

show cause against recording satisfaction of the decree. The judgment-debtor is still in time and can take action, if he thinks fit. We are of opinion

that the appeal fails and must be dismissed with costs. C.M.P. No. 2493 of 1912 is also dismissed with costs.