- (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 Datta 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 an adjustment and was not (sic) 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 re-preventatives 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 hot certified or recorded under Or XXI, Rule 2(1) or Rule 2(2), Code of Civil Procedure 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 degree-holder was no longer bound by the adjustment and could execute his own decree.
(3.)In reply to the first ground reliance on behalf of the judgment debtor is placed on the statement made by the decree-holder in his application for execution and it is urged that the Statement amounted to a certification and the question of any bar to its recognition by the court executing the decree does not therefore, arise. The entry in column. 5 of the application for execution is to the effect that there was a mutual adjustment between the parties by means of order No. 91 of 28-2-1939 but as the, judgment-debtor did not abide by and accept its terms and executed his decree of suit; No. 14 of 1938 in disregard of the adjustment, the adjustment became void, in effective and extinct and the decree-holder was, relegated to the rights which he had prior to the adjustment. I may here point out that the original application for execution was amended and substituted by another application dated 21-3-1942, arid the entry in column 5, of the second application is more detailed and explicit