P.N.Mookerjee, J. - (1.) On 19-12-1950 the plaintiff Respondent Radha Shyam Biswas obtained a decree (including claim and costs) in Money Suit No. 15 of 1950 of the Court of the Subordinate Judge at Krishnagar against the Defendant Appellant Monindra Nath Biswas for a sum of Rs. 57,376/- upon a Solenama filed in the suit on 5-12-1950. Under the Solenama, the Respondent's dues were payable in several instalments extending up to April 1952 and the mode and manner of payment of these instalments were also clearly specified therein. It was also distinctly provided in the said Solenama that in case of any default on the part of the defendant Monindra Nath Biswas in the carrying out of the terms thereof the Plaintiff Radha Shyam Biswas would be entitled to realise his entire dues or the then, outstanding balance thereof by immediate execution. The Solenama further expressly provided in paragraphs 5 and 6 thereof as follows: "5. If the defendant violates any of the terms out of all the terms mentioned before or if he does not make payment according to the terms the plaintiff will be entitled to move against the defendant and to realise the unpaid decretal amount by attachment of the money payable from the defendants' bills or his earnest money or his moveable and immovable properties according to his rights. 6. As a consideration for the plaintiffs allowing the defendant to pay the decretal amount in instalments the defendant keeps the immoveable properties mentioned in the Schedule and owned and possessed by him charged by way of security for payment of the decretal dues." and then followed the "Schedule of list of the properties" - which were charged.
(2.) On 8th March 1951, the plaintiff-decree-holder applied for execution of the decree and realisation of his dues by attachment of certain bills and security deposits of the judgment-debtor lying with the Government in its various departments upon the allegation that the said judgment-debtor had fraudulently violated the terms of the Solenama or compromise, referred to in the preceding paragraph. The Court ordered interim conditional attachment of the bills and security deposits and directed issue of notice to the judgment-debtor to show cause against the same. The notice was duly served but no objection was filed by the judgment-debtor and the execution proceeded for some time. In the course of the proceedings, it was discovered that one of the Items of security deposits attached was already under attachment at the instance of some other decree-holders of the self-same judgment-debtor and, accordingly, the Respondent applied for rateable distribution in regard to the same and eventually received a sum of Rs. 7,583/4/6 on such rateable distribution in part satisfaction of his decretal dues. As to the other items attached there was prolonged correspondence between the Court and the different Government Departments concerned and it appeared plain that the said moneys would not be available in the near future and that even upon realisation, they would not be sufficient to satisfy even a moiety of the decree-holder's dues. In such circumstances, the decree-holder applied on 27th March 1952 for amendment of his execution petition by incorporating therein a prayer for sale of the charged properties for the realisation of his dues and for including in the said execution petition a schedule of the said charged properties for that purpose. This prayer for amendment of the execution petition was allowed and the petition of amendment was directed to be treated as a part of the original petition of execution with a further order of issue of notice on the judgment-debtor under Order 21 Rule 22 C.P.C. presumably with a view to give opportunity to the judgment-debtor to object to the decree-holder's prayer for amendment of the execution petition, as set out above, before any further steps were taken upon the same. Apparently, therefore, the Court's order allowing the decree-holder's prayer for amendment of his execution petition was only provisional at this stage and the Court intended to proceed further in the matter only after consideration of the judgment-debtor's objection, if any, to the same. According to the peon's return, the notice under Order 21, Rule 22 Civil P. C. was duly served and as, on the date fixed in the notice, namely, 26-4-52, there was no appearance on behalf of the judgment-debtor and no objection to further proceedings in execution, the Court on that date recorded an order inter alia to the following effect: "Notice served. Requisites filed. Issue notice under Order 21, Rule 66 C.P.C. upon judgment-debtor fixing 21-5-52 for return and orders......"
(3.) On 5-5-1952 the judgment-debtor appeared and filed an application under Section 47, C.P.C. and his chief objections were: (1) That the execution was premature and in contravention of the terms of the compromise decree. (2) That the notice under Order 21, Rule 22, C.P.C. had not been duly served and the judgment-debtor had been fraudulently denied opportunity to object to the execution in time, and (3) That the order of amendment of the execution petition was illegal and without jurisdiction and the immoveable properties of the judgment-debtor could not in law be proceeded against in that execution. This application was registered as Misc. Case No. 56/52 under Section 47, C.P.C., and was eventually fixed for hearing on 31-5-52.;