Sinha, J. - (1.) This is an appeal from an order passed by Ray, J. on the 28th March, 1963. The facts are shortly as follows: The plaintiff-appellant Md. Bashir instituted Suit No. 305 of 1956 against the defendant Abdul Fazl Siddiqui, for recovery of the sum of Rs. 3630/- on account of arrears of rent in respect of premises No. 62, Taltola Lane, Calcutta, and for cost. On the 11th August, 1958 the suit was compromised by a consent decree. It was decreed that the defendant would pay to the plaintiff the sum of Rs.3000/- in full settlement of his claim and cost. On the 20th May, 1959 the plaintiff decree-holder made an application for execution of the said decree and obtained an order for attachment of premises No. 43, Ripon Street, Calcutta. On the 3rd June 1959 the attachment was effected. On the 10th March, 1962 the plaintiff made an application for sale of the attached premises. On the 28th May, 1962 Sekina Begum, wife of the defendant, made an application for vacating the said order of attachment on premises No. 43, Ripon Street, on the allegation that the said premises belonged to her but was purchased in the benami of her husband. On the 20th September, 1962 an order was made by consent of the parties whereby it was ordered that if the said Sakina Begum filed a suit by 3rd December, 1963 then there would be no sale but if no suit was filed by that date, her application would stand dismissed with costs. No suit was filed by Sakina Begum. On the 28th November, 1962 the Solicitor of the defendant wrote to the Solicitor of the plaintiff that the parties had settled the matter amicably out of Court. On the same day, the Solicitor for the plaintiff replied that he had received no such instruction to the effect that the matter had been settled. On the 3rd January, 1963 a written agreement signed by the parties dated 28th November, 1962 was shown to the plaintiff's Solicitor. On the 4th January, 1963 the Solicitor for the plaintiff wrote to the Solicitor for the defendant that the agreement had been signed but the words 'or thereafter' had been interpolated into the agreement. On the 9th January, 1963 the application for sale of the said premises was dismissed on technical grounds. On the 10th January 1963, an application was made by the defendant under Order 21 Rule 2(2) of the Civil Procedure Code for recording the alleged adjustment dated 28th November, 1962 of the consent decree dated 11th August, 1958. This application was opposed by the plaintiff and the matter was set down for trial on evidence. On the 28th March, 1963 Ray, J., after hearing the evidence held that the consent decree had been adjusted on the 28th November, 1962 as alleged by the defendant, and he directed the adjustment to be recorded. It is against this order that this appeal is directed. The alleged terms upon which the consent decree was adjusted is Ex. A to the petition and is set out at page 7 of the Paper Book. The alleged terms are as follows :- "(1). That the above suit is settled out of Court between the parties and necessary steps will be taken by the plaintiff to file terms of settlement before the Court. (2). That on or before the 3rd day of December 1962 or thereafter the plaintiff will receive from the defendant the sum of Rs.1500/- (Rupees one thousand five hundred) in full and final settlement of the above suit including costs. (3). That upon payment of the said sum of Rs.1500/- the plaintiff will admit that Sakina Begum is the absolute owner of the premises No. 43, Ripon Street, Calcutta and the plaintiff will waive his all charges, lien against the said property or against her."
(2.) The dispute between the parties is as follows : Both the parties admit signing this document but according to the plaintiff the words 'or thereafter' after the words '3rd day of December 1962' were not there when he signed the agreement, but had been interpolated afterwards. If the adjustment stood without those two words, then there has been no compliance with it because the sum of Rs.1500/- was neither paid nor tendered, on or before the 3rd day of December 1962. As I have mentioned above, the matter was set down for trial on evidence. On behalf of the defendant, he himself and one Nurul Hasan, a teacher, has given evidence. On behalf of the plaintiff, the plaintiff himself has given evidence, and no other evidence was called. Coming to the adjustment, the case on behalf of the defendant was that there was a typed original on stamp paper and also a carbon-copy on stamp paper. Both these documents were signed by the parties and the original remained with the plaintiff and the carbon copy with the defendant. According to the defendant, one Khalil the elder brother of the plaintiff was his class-mate and through his kind offices a settlement was brought about. In the morning of the 28th November, 1962 at about 11 a.m. the two parties met at the residence of the plaintiff and made an outline of the agreement. Both of them came to the High Court and two stamp papers of Re.1/- each, were purchased in the name of Md. Bashir and then they went to a typist's chamber at No. 7, Old Post Office Street. There, the agreed draft was drawn up and the date 3rd December, 1962 inserted, and it was type out. While the documents were being typed the plaintiff left and it was agreed that the document would be executed in the evening at the plaintiff's residence. The defendant's evidence is that in the evening at about 7 p.m. he went to the residence of the plaintiff accompanied by one Nurul Hasan, who is a private tutor to this children. The defendant pointed out that it may not be possible for him to find the amount within 3rd day of December, which only gave him four days, and he asked the plaintiff to extend the time a little and suggested that the words 'or thereafter' be added after the date and that the intention of the parties was that the payment would be made before the application for sale which was pending before this Court was disposed of. It is the defendant's specific case that thereupon, in both the original documents and the carbon copy, the words 'or thereafter' were added in the handwriting of the defendant and after signature the original was kept by the plaintiff and the carbon copy was kept by the defendant. During all this time, the parties did not consult their legal advisers, but chose to carry out the whole operation of adjustment, by themselves. The defendant has produced a signed copy and this is Ex. A. I have looked into the original and find that it is a carbon copy and the body of the agreement is typed out but the words 'or thereafter' have been added in ink. The plaintiff has made out the case that there was only one document which was signed by both the parties and it is this document that has been produced by the defendant. According to him, this document as signed by the parties did not contain the words 'or thereafter'. The plaintiff denies that he ever agreed to the incorporation of those words into the agreement. He denies ever having met Nurul Hasan. The learned Judge in his judgment has accepted the evidence of the defendant and has rejected that of the plaintiff. He has pointed out that the document that was produced is admittedly a carbon copy and although the plaintiff was a businessman and appeared to be quite experienced and clever, it is incredible that he signed the carbon copy only and kept no copy himself of the agreed terms. In our opinion, this is a cogent reason, and we think that the learned Judge was entitled to draw an adverse inference from the fact that the plaintiff denied having kept any copy. According to the learned Judge, the plaintiff did have in his possession the original but he was not producing the same as it would support the defendant's case and destroy his own. We agree wit his conclusion. The learned Judge accepted the evidence of Nurul Hasan. The findings upon these points are findings of fact and there appears to be no ground for interfering with the conclusions of the Court below. Mr. Ghose appearing on behalf of the plaintiff appellant has argued that there are many discrepancies in the evidence of the defendant which should have induced the learned Judge to reject his evidence. To start with, no such argument appears to have been advanced in the Court below, and consequently has not been dealt with by the learned Judge. Mr. Ghose was not present in the lower Court and has frankly confessed that he has no personal knowledge of what happened there. The discrepancies that he points out are between the evidence of the defendant and the statements made in the petition filed in the application. Mr. Ghose draws our attention to paragraphs 9 and 10 of the petition appearing at page 3 of the paper book. It is stated there that on the 28th November, 1962 at about 11 a.m. in the morning, the defendant went to the plaintiff's residence and there, the parties prepared a draft terms of settlement on the terms agreed. The agreement was that the plaintiff would accept Rs.1500/- in full settlement of the decree including cost, and upon payment of the said sum he would admit that the defendant's wife was the absolute owner of premises No. 43 Ripon Street, Calcutta. The plaintiff and the defendant came to the High Court and purchased two stamp papers of Re.1/- each. The plaintiff asked the defendant to get the draft terms typed in duplicate and to call on him at his residence in the evening for the purpose of signature. Accordingly, the stamp papers were typed in duplicate and in the evening the defendant went to the plaintiff's residence and thereafter the words 'or thereafter' were agreed to be put after the date 3rd December 1962 in clause 2 of the terms. The defendant thereupon inserted those words in both the copies which were then signed by the parties, the plaintiff retaining the original and the defendant the carbon copy. Mr. Ghose points out that in the petition it is not stated that both the plaintiff and the defendant went to the chamber of the typist or that the draft terms were settled at the typist's chamber where the date 3rd December, 1962 was put in. during the evidence, paragraph 9 of the petition was shown to the defendant and he was asked why the fact that Bashir left while the terms were being typed out, was not mentioned in the petition. He answered that although it was not so specifically mentioned, this is what had happened. The defendant was not asked why in paragraph 9 there is no statement about the plaintiff going to the typist's chamber. The defendant was asked why in paragraph 9 he did not mention anything about the preparation of the draft in the typist's chamber. He explained that when he went to the plaintiff's residence in the morning, points were jotted down and an outline made but it was at the typist's chamber that the agreed draft was made out. Mr. Ghose has also pointed out that in his evidence (q. 59, 60, 61) the defendant stated that he had not informed his attorney Mr. Biswas about the final settlement before the 3rd day of December, 1962 and yet on the 28th November, 1962 Mr. Biswas Solicitor for the defendant was writing to the Solicitor for the plaintiff that he had been instructed that the parties had settled the matter amicably out of Court. this letter is included in Ex. A to the petition and appears at page 17 of the paper book. Unfortunately, however, this letter was never put to the defendant to contradict his evidence. In our opinion, the so-called discrepancies are not such as would justify us in coming to the conclusion that the defendant's evidence should be disbelieved. The parties were giving evidence as to facts which had happened about a year previously and it was not to be expected that minor discrepancies would not be found. The evidence has to be read as a whole. Both the defendant and Nurul Hasan were cross-examined at length and it must be stated that they fairly withstood the same. It might have been of some importance to investigate as to the reason why Mr. Biswas wrote the letter on 28th November, 1962. But unfortunately, this letter was never put to the defendant. Nurul Hasan has also said that the words 'or thereafter' were inserted in his presence. There is no specific cross-examination on this point. On the questions of fact we are unable to disagree with the findings of the lower Court. The next point taken by Mr. Ghose is that even assuming that the words 'or thereafter' appeared in the agreement, the adjustment was not such as could be legally certified under the provisions of Order 21 Rule 2. He relies on a Bench decision of this Court Azizur Rahman Chowdhury v. Ali Raja Choudhury, 32 Cal WN 434 : (AIR 1928 Cal 527). In that case, a decree had been passed on 23rd November, 1921 declaring the plaintiff's right of easement on a certain pathway and directing the removal of obstructions and granting a perpetual injunction restraining the defendant from putting up such obstructions in future. It was inter alia alleged that the decree had been adjusted inasmuch as there were proposals giving the decree-holder another pathway which proposal was said to have been accepted. Mukharji, J. said as follows: - "Now, as regards the adjustment which is sought to have been arrived at we have looked into the terms of the compromise that is alleged to have been so arrived at and which are embodied in the draft agreement that was filed on behalf of the judgment-debtors and we find that the adjustment did not consist of stipulations that had been carried out but consisted merely of terms that had to be carried out in future. Such an adjustment does not come within the purview of Order 21 Rule 2 of the Code of Civil Procedure . The adjustment referred to in Order 21, Rule 2 is such an adjustment or completely or partly extinguishes the decree under execution and which will again have to be executed."
(3.) If this decision means that a decree can never be adjusted by an executory agreement, it is contrary to an earlier Bench decision of this Court passed under the Civil Procedure Code of 1882, Jhabar Mahomed v. Modan Sonabar, ILR 11 Cal 671. That this view has not been followed in this High Court appears from a judgment of Mr. Justice Bijon Mukherjea, in Moulvi Serajul Haque v. Noabali Meah, 42 Cal WN 313. The legal position has been clearly set out by the learned Judge in the following words:- "Mr. Das who appears for the appellant has argued before me that the lower appellate Court was in error in thinking that the decree could not be lawfully adjusted by a contract. This contention obviously is sound. It is not necessary that there must be a completed transaction. It is enough if the decree-holder enters into a fresh contract with the judgment-debtors for the satisfaction of the decree and if the contract is lawfully enforceable even though executory, it might operate as an adjustment of the decree. Distinction must be made, however, between a case where the decree-holder accepts as an immediate satisfaction or adjustment of the decree a promise of the judgment-debtors to do something in future and the case where the agreement is to accept a decree as adjusted or satisfied only if the thing promised is actually done at a future date.";