RAM KUMAR BHARGAVA, DECREE-HOLDER Vs. CHAUBEY RUDRA DATT, JUDGMENT-DEBTOR

JUDGEMENT

(1.) THESE are two connected Execution Appeals. Appeal No. 704 of 1953 has been filed by the decree-holder whereas Appeal No. 1809 of 1955 has been filed by the judgment-debtor. Raja Ram Kumar Bhargava obtained a decree for profits against Chaubey Rudra Dutta in suit No. 12 of 1938, and Chaubey Rudra Dutta obtained a decree for profits against Raja Ram Kumar Bhargava in suit No. 14 of 1938. On 10-2-1942 Raja Ram Kumar Bhargava made an application for the execution of the decree passed in his favour in suit No. 12 of 1938 and prayed that the decree against him in suit No. 14 of 1938 be attached. Chaubey Rudra Dutta objected to execution of the decree on the ground that the decree had been satisfied as a result of an adjustment out of court which was incorporated in what was described as order No. 91 dated 28-2-1939 of the estate of Raja Ram Kumar Bhargava known as the Nawal Kishore Estate and contended that the decree was no longer executable. The Assistant Collector held that the adjustment did not cover the decree in question and overruled the objection, but on appeal the decision of the Assistant Collector was reversed by the Civil Judge who held that the decree had been satisfied as a result of adjustment and was not capable of being executed. Raja Ram Kumar Bhargava decree-holder has come up in appeal to this Court against the above order of the Civil Judge. Chaubey Rudra Dutta judgment-debtor died during the pendency of the appeal in this Court and his representatives have been brought on record in his place.

(2.) IT is no longer in dispute that an adjustment was effected between the parties by means of order No. 91 of 28-2-1939, and that the adjustment covered the decree in question. It is also not in dispute that the amount which, under the terms of the adjustment, the judgment-debtor was required to pay to the decree-holder in complete satisfaction of all the claims that the latter had against the former was paid within the agreed period of time. The contention on behalf of the decree-holder, however, is that the decree is executable in spite of the adjustment. The grounds on which this contention is advanced are two. Firstly, the adjustment was not certified or recorded under Order XXI, Rule 2(1) or Rule 2(2) C.P.C., and consequently it cannot be recognised by the court executing the decree. Secondly, since under the adjustment all claims of the judgment-debtor against the decree-holder including claims under decrees were also treated as fully satisfied and since, In disregard of the terms of the adjustment, the judgment-debtor had executed the decree passed in his favour in suit No. 14 of 1938, the decree-holder was no longer bound by the adjustment and could execute his own decree.

(3.) THIS statement of the decree-holder unmistakably shows that the decree-holder admitted the fact of the adjustment having been arrived at and intimated it to the court. It is true that, according to the statement, the decree-holder regarded himself as no longer bound by the adjustment, but he undoubtedly affirmed that an adjustment did come into existence. Indeed, the statement that as a result of the judgment-debtor having acted contrary to the terms of the adjustment the decree-holder could exercise the rights which he possessed under the decree and the adjustment had lost all force and effect emphasised the fact that an adjustment had been reached and had become operative. Mr. G.P. Bhargava, learned counsel for the decree-holder, submitted that the entry in column 5 of the execution application amounts to an averment of a mere inchoate arrangement and not of a completed adjustment. The words used in the application, however, preclude such a construction. What, then, is the effect of the statement so far as the requirement of certification is concerned ?