DWARKA PRASAD NAIK Vs. SHYAMA CHARAN NAIK

JUDGEMENT

(1.) THIS appeal under Clause 10 of the Letters Patent is directed against an affirming order of the learned Single Judge by which he refused to treat a decres as fully satisfied and an application for execution of that decree as untenable for that reason.

(2.) THE respondent, who is a younger brother of the appellant, filed Civil Suit No. 4a of 1939 for partition and separate possession of his share in their joint family property. In terms of the final decree for partition dated 8 January 1952, the appellant became liable to pay to the respondent a sum of Rs. 36,978/2/3/ in lieu of his share in the property. Thereupon, on 18 March 1954, the respondent applied for execution of that decree and asked for attachment of the appellant's moveable and immoveable property. In due course, his immoveable property was attached and, on 1 July 1954, a date for sale of the property was fixed and the respondent was directed to pay the fees required for issuing the usual processes. Since the process fees were not paid on the next date, the case was adjourned to 4 november 1954, when the execution application was "dismissed as not prosecuted" but the attachment was kept alive.

(3.) IT is not now disputed that, prior to this, on 28th June 1954 to be more precise, two agreements, Ex. A-1 and Ex. NA-1, were come to between the parties. the material portions of those agreements are reproduced :. . (Vernacular Text Can not be Display ). . (Ex. NA_1)The first agreement was executed by the respondent and the second was executed by the appellant. The respondent also admitted that he actually received, as shown by Ex. A-1, a sum of Rs. 11,000. 00.