SHITAL PRASAD Vs. DHAN KUMAR

JUDGEMENT

(1.) THIS execution second appeal is by the judgment debtor. The facts in brief are as follows: The decree- holders respondents had a decree in their favour passed in original suit No.' 1225 of 1950 for possession over certain land after demolition of the constructions raised by the judgment-debtor on the said land. The judgment-debtor-appel lant, Shital Prasad, filed objection 3-C dated 2-2-1972, Paper No. 162 in Misc. Case No. 37 of 1972. The objection pur ported to be under Order XXI, Rule 2 read with Section 47, C.P.C. The said judgment-debtor claimed certification of adjustment of decree and also challeng ed the maintainability of the execution application on the ground that all the heirs of a deceased decree- holder, Jugmandar Das, had not been brought on re cord in the execution application. It was alleged in this objection that on 19-lf 1972 at about 11-00 A.M. when the Amin along with one of the decree- holders, Dhan Kumar, four constables and Thanedar etc. reached the spot, a talk about compromise started between the parties with the help of Shahjad Rai and Lala Ram Chander alias Jado Ram and it was. agreed at that time that with the help of the said Shahjad Rai and Lala Ram Chander alias Jado Ram the parties would settle the matters themselves. Therefore, the Amin went back without effecting delivery of possession. Subsequently, on the said date at about 3-00 P.M. the par ties and the said Shahjad Rai and Lala Ram Chander alias Jado Ram, all as sembled together and the decree in ques tion was agreed to be adjusted on the conditions set out in the said compromise 3-C dated 2-2-1972. It is not necessary to set out the details of the terms of ad justment. Broadly, it may be stated that the parties are alleged to have agreed that the constructions were not to be demolished by the decree-holders and the latter also agreed not to take posses sion of the land standing beneath the said construction and the decree-holders are also alleged to have agreed that the said land would become the sole pro perty of the judgment-debtor. A sum of Es. 7,000.00 was agreed to be paid to the decree-holders by the judgment-debtor, in respect of the said land the claim of whose possession was being given up by the decree-holders. It was alleged in the said objection that the sum of Rupees 7,000.00 was agreed to be kept with Shahjad Rai and it was agreed between the parties that within a period of 3 or 4 days the parties would go to the court, have the compromise and adjustment certified and then the said sum of Rs. 7,000.00 would be paid to the decree-holders before the Presiding Officer of the court. It was also alleged that in fact the said compromise was acted upon and, inter alia, portions of land were taken possession of by the decree-holders and certain constructions were also" raised by the decree-holder's in pursuance of the said adjustment or compromise. The judgment-debtor appellant alleged that subsequently the decree-holders began to resile from the compromise and hence the said objection- cum-application under Order XXI, Rule 2, C.P.C. read with Sec tion 47, C.P.C. was moved. The objection under Section 47, C.P.C. was raised in the said paper 3-C to the effect that be cause of the non- substitution of the heirs of a deceased decree-holder, Jugmandar Das in the execution application, the latter was not maintainable.

(2.) THE decree-holders respondents filed their reply 7-C to the said 3-C. They flatly denied that there was any adjustment or compromise between the parties. They admitted that on 19-1-1972 when the Amin reached the spot for effecting delivery of possession, the judg ment-debtor did suggest to Dhan Kumar, one of the decree-holders, that there should be an attempt to have the matter compromised and Dhan Kumar did agree that such an attempt should be made. Therefore, the Amin went back without effecting delivery of possession. How ever, it was denied that subsequently any adjustment or compromise was reached between the parties and, therefore, on S2-1-1972 the decree-holders moved in the execution court stating that the talks between the parties for a compromise did not fructify and, therefore, proceedings for the delivery of possession should be restarted. In para 9 of the said application the decree-holders contended that the alleged adjustment or compromise was said to have been reached between the judgment-debtor and one decree-holder and such a compromise or adjust ment would be legally ineffective as it was not a compromise or adjustment with the entire body of the decree-holders.

(3.) THE judgment-debtor there after filed an appeal in the lower appel late Court and the said court after an exhaustive and detailed examination of the evidence on the record and taking into consideration the circumstances of the case held that the oral adjustment or compromise alleged to have been arriv ed at between the parties lacked founda tion. The said court has given good rea sons for discarding the version of the judgment-debtor about the alleged ad justment or compromise between the par ties. The judgment-debtor, Shital Prasad, made conflicting statements on such a major point as the payment of the sum of Rs. 7,000.00 alleged to be agreed be tween the parties to be paid to the de cree-holders for giving up their right of possession over the land beneath the constructions of the judgment-debtor. While in his objection 3-C the judgment-debtor stated that the sum of Rs. 7,000.00was kept with Shahjad Rai and was to be paid to the decree-holders at the time of the certification of the compromise, in his oral statement in the court he seated that the said sum was then and there paid to Dhan Kumar through Shahjad Rai on 19-1-1972 at 3-00 P.M. when the parties sat together along with the aforesaid Shahjad Rai and Ram Chander alias Jado Ram. There were other circumstan ces also which discredited the version of the judgment-debtor and the same have been discussed in the judgment of the lower appellate court. The appeal was, therefore, dismissed by the said court.