Neduri Rajanna vs Dontukunti Seshamma and Another

Venkatasubba Rao, J.—The proceedings have taken a somewhat irregular course. The plaintiffs applied to execute the decree dated the

15th of October 1919, and filed E. P. No. 27 of 1922, dated 1st February 1922. Subsequently the plaintiffs and some of the defendants entered

into a compromise on the 21st February 1922, and an application E. A. No. 182 of 1922 was made under Order 21, Rule 2 to the executing

Court on the same date for the recording of the adjustment. So far as the facts can be gathered from the papers before me this application was

made jointly by the plaintiffs and all the defendants excepting Defendants Nos. 1 and 7. It was adjourned to the next day and ultimately dismissed

on the 4th of March. It was dismissed on the ground that it was not pressed, but I am now told that it was only the decree-holder''s vakil that

appeared and said that the application was not pressed. The next step was taken by the plaintiffs who again applied for execution on the 4th of

May 1922 by filing E. P. No. 556 of 1922. It was resisted by the 10th defendant who on the 4th of July filed E. A. No. 629 of 1922 asking that

the Court should record under Order 21, Rule 2 the compromise to which I have referred. The lower Courts have dismissed the application of the

10th defendant and he has filed the present appeal.

The application E. A. No. 629 of 1922, filed as it was more than 90 days after the adjustment referred to, may at first sight appear to be barred

by limitation; but I must say that this is not the ground on which the order of dismissal is based and, in my opinion, the application is not in fact

barred. As the Subordinate Judge rightly points out E. A. No. 182 of 1922 has not been properly disposed of, the present application cannot be

construed as being different from it. Though it is termed a fresh application it is, in substance, a continuation of the previous one.

Clause 1 of Order 21, Rule 2 provides that the decree-holder shall certify the adjustment to the Court and the Court shall thereupon record the

adjustment.

Under Clause 3, an adjustment which has not been certified or recorded cannot be recognized by a Court executing the decree. It is sufficient,

therefore, that the adjustment has been certified and for the Court to recognize the adjustment it is not necessary that it shall have been both

certified and recorded. The words used in Clause 3 are ""certified or recorded,"" and not ""certified and recorded."" If this be so, was there a proper

disposal of E. A. No. 182 of 1922? The judgment creditor could not withdraw the application nor could the Court dismiss it. As is pointed out in a

Calcutta case reported as Tarak Nath Sarkar v. Natabar Mondal [1915] 21 C. L. J. 362 the judgment-debtor does not lose his protection merely

because the Court fails to perform the duty cast upon it, namely, to make a record that the payment or adjustment has been certified by the

decree-holder: see also Somu Pathar v. Rengasami Reddiar [1919] 35 M. L. J. 252 Sadasiva Iyer, J., observes in Thimma Reddi v. Subba

Reddiar [1918] M. W. N. 507:

The neglect by the Court of the duty expressly imposed on it of recording the decree-holder'' s certificate cannot prejudice the judgment-debtor

and it cannot be argued successfully that the record also by the Court is required under Sub-rule 3 before the payment or adjustment could be

recognized.

In the same case Napier, J., points out that the object of the rule is not even to require any particular form of proceeding but only to provide that

the Court should be informed of the payment.

The facts of this case are, however, peculiar. The application to recognize adjustment was not made by the decree-holder alone under Clause 1

nor was it made by the judgment-debtors alone under Clause 2. It was a joint application and in the light of the events that have taken place it is

impossible to construe the application as an unqualified certificate by the plaintiff that the decree has been adjusted. When E. A. No. 182 of 1922

was filed the Court adjourned it, for the purpose of the 7th defendant who had not signed the compromise notifying his acceptance of it. He did not

appear and eventually the application was dismissed. In the circumstances the application must be understood as one made to the Court for the

purpose of enquiring whether there was any adjustment and for recording it if in fact a valid adjustment was made.

The learned Subordinate Judge dismissed the application on the ground that there was not a completed compromise, the same not having been

executed by the 7th defendant. This view appears to be wrong. The mere fact that the 7th defendant did not sign the compromise does not show

that there was not a concluded agreement. Was it the intention of the parties that the agreement should not be given effect to until and unless the

7th defendant agrees to abide by it, or was it their intention that it should be binding as between the parties to the agreement but was not to be

effective until the 7th defendant gave his consent, was there a limit of time within which the 7th defendant was to notify his assent? If not is he even

now prepared to abide by the compromise? These are questions which have to be tried but no evidence has been adduced and no decision has

been given. In deciding what the intention of the parties was, it will be material to determine whether the compromise can be given effect to as

regards some, leaving the decree outstanding as regards others. If this cannot be conveniently done, the Court will be very slow in concluding that

it was intended that the compromise should hold good even without the consent of the 7th defendant.

Before I can dispose of this appeal, it is necessary that I should have findings on these matters. The lower appellate Court is requested to submit

findings, both sides being at liberty to give evidence. Two months will be allowed for the return of the findings and ten days for objections after

notice of the return of the same shall have been posted in this Court.

[After the return of the findings.of the lower appellate Court, the Court delivered the following]

JUDGMENT

I accept the finding. The result is the lower Court will be directed to record the compromise and dismiss the execution petition. The appeal is

accordingly allowed but in the circumstances, I direct each party to bear his costs throughout.