MT LALTAPATI KUER Vs. NARAIN MAHTON

JUDGEMENT

(1.) This is an appeal from a decision of the Subordinate Judge of Patna allowing an objection to an execution proceeding. The suit out of which the execution proceedings arise was brought by the plaintiff against 12 defendants for possession of certain property and for mesne profits. An appearance was entered by defendants 2 and 5 and by the minor defendants under a guardian-adlitem. A decree was granted by the Subordinate Judge for a sum of between six and seven thousand rupees. A certain controversy has taken place before, us as to the construction of this decree.

(2.) We are satisfied that it is a joint and several decree against all of the defendants notwithstanding that the substantial defence was offered by defendants 2 and 5. It may be that the decree was wrongly passed against those defendants other than defendants 2 and 5. As to that I desire to express no opinion. The fact remains that the defendants other than defendants 2 and 5 neither contested the suit nor did they appeal from the decision nor did they ask for any modification of the form of the decree so as to exempt them from liability. But defendants 2 and 5 preferred an appeal which ultimately came up before this Court, and before this Court the appeal was settled and a consent decree was passed in the following terms: In this appeal the patties have come to terms. It has been agreed that the defendants appellants will pay to the plaintiff the sum which has been decreed in the mesne profits proceedings plus court fee on the sum of Rupees 4,036 which is the estimated amount of means profits antecedent to the suit on which court-fee was paid.

(3.) That is to say, the amount of the decree was reduced from what it bad originally stood at to the lesser sum mentioned in the agreed terms. The question arises as to what, if any, the effect of this modification has been upon the liability of the defendants other than those who appealed. The plaintiff sought to put the decree as modified into execution against some of the defendants other than those who had appealed. They objected to the execution contending that the original decree had by consent been set aside, that they had been released from liability under that original decree and that the new decree had substituted a liability for a modified sum of the two defendants who had appealed. This contention was acceded to by the learned Subordinate Judge in the execution proceedings, and from his decision the plaintiff has appealed to this Court.