Anil Kumar Sen, J. - (1.) This is an appeal against an order dated March 15, 11958 passed by the learned Subordinate Judge, First Court, Alipore. District 24 Parganas in Misc. Case No. 96 of 1955 --arising out of Title Execution Case No. 16 of 1955 -- dismissing thereby an objection under Section 47 of the Code of Civil Procedure.
(2.) The objectors are the heirs and legal representatives of a deceased judgment-debtor Radhakissen Mohta. In or about the year 1945-46 the Revenue Authorities started Certificate Case No. 241 I. T. 1945-46 before the Certificate Officer, 24 Parganas for recovery of certificate dues from the said Radhakissen Mohta. While the said proceeding was pending Radhakissen Mohta instituted Title Suit No. 121 of 1947 in the First Court of the Subordinate Judge at Alipore against the predecessor-in-interest of the present respondent for a declaration that the certificate filed in the aforesaid Certificate Case No. 241 I. T. of 1945-46 is void, illegal, inoperative and not binding on him and for cancellation of the certificate. The suit failed in the trial court and it was dismissed on September 17, 1948. The certificate debtor Radhakissen Mohta preferred an appeal from original decree to this court which was registered as F. A. No. 186 of 1948. In the above appeal to this court, the parties filed a petition of compromise incorporating the terms of settlement on August 13, 1949 and this Court disposed of the appeal by passing a decree in terms of the said petition of compromise on August 24, 1949. As the dispute in the present appeal before us arises out of the rival interpretation of the said decree and the terms of Settlement it is necessary to set out material part of the terms which reads as herein: "1. The sum of Rs. 50,000/- deposited by the Certificate-debtor with the first Sub-Judge, Alipore in T. Suit No. 121 of 1947 to be withdrawn and appropriated towards outstanding income-tax dues and the Certificate-debtor will give his consent thereto. 2. In addition to the sum of Rs. 25,000/- already paid the Certificate-debtor will immediately pay a further sum of Rs. 1 lac to the Income-tax Officer. 3. The present value of 1960 shares of Ganesh Commercial Co. Ltd. as determined by an independent valuer nominated by the Commissioner of Income-tax, West Bengal, will also be immediately paid. 4. The department will not require payment of the balance of the income-tax and E.P.T. demands remaining outstanding after the aforesaid payments in accordance with this settlement. 5. The assessee will not claim any refund on account of deficiencies, if any, hi respect of the pending E.P.T. assessments for the two remaining C.A.Ps, ending October, 1945 and March, 1946. Nor will such amounts which would otherwise have been repayable under the proviso to Section 12 of the E.P.T. Act be taken into account in computing the total income for income-tax purposes for the corresponding assessment years. 6. The appeal in the High Court arising out of the recovery proceeding (being Appeal No. 186 of 1948 A.O.D.) and the recovery proceedings before the Certificate Officer, 24 Parganas (being Certificate Case No. 241 I. T. of 1945-46) will thereupon be withdrawn by the Certificate-debtor and the Income-tax Department respectively. Each party to pay his costs throughout irrespective of any order or decree for costs already made. 7. The Rending suits in the High Court, (a) against Mr. Sital Prasad being No. 1788 & 1941 & (b) against Nurzaman & Anr. being No. 1831 of 1951 will be struck off, each party paying his own costs. 8. All costs of the valuation of the shares of Ganesh Commercial Company Ltd. (referred to in Clause 3) will be borne by the assessee. These terms when carried out will mean and include the settlement and termination of all proceedings arising out of the I.T. Assessment for the year 1940-41 and F.P.I, assessment for the corresponding C.C.P."
(3.) It is not in dispute that over and above the sum of Rs. 50,000 and Rs. 25,000 referred to in Clauses 1 and 2 of the above terms, the Certificate-debtor had also paid a sum of Rupees 1 lac as referred to in Clause 2 and a further sum of Rs. 10,000 towards the value of the shares referred to in Clause 3 of the terms as above. It is also not in dispute that save as aforesaid no other sum has yet been paid either by the Certificate-debtor or his heirs and legal representatives--the present appellants.;