FRENY KAIKKOSHROO COOPER Vs. S K CHOUKSEY

JUDGEMENT

(1.) RESPONDENT S. K. Chouksey has raised a preliminary objection to the maintainability of this second appeal. I propose to deal with the preliminary objection alone.

(2.) THE facts may be briefly stated : Chouksey filed a suit in the Court of the VII Civil Judge Class II, Jabalpur, for eviction of his tenant K. Manekji cooper on 8-7-1971. The suit was decreed on 10-2-1976. Manekji preferred an appeal before the First Additional District Judge, Jabalpur. He died during the pendency of the appeal and his legal representatives were brought on record. The three appellants and respondent No. 2 are the legal representatives of K. Manekji. The appeal came to be dismissed on 15-1-1977. The present second appeal has been filed on 15-2-1977 by the three out of the four legal representatives.

(3.) AS soon as the first appeal was dismissed on 15-1-1977, the respondent-landlord (decree-holder) sought to execute the decree for eviction. He informed the executing Court on 17-1-1977 that the appeal had been dismissed. The executing Court thought it wise to await the records. As per order sheet of the Court, the judgment-debtor had put in appearance on 17-1-1977 through shri Rajendra Tiwari Advocate. On 20-1-1977, an application was moved under Order 21, Rule 2 of the Code of Civil Procedure for recording an adjustment. The proceedings show that the decree-holder was present along with Shri Raj Advocate and the judgment-debtors were present along with rajendra Tiwari Advocate. The application for adjustment, however, purports to have been signed by one of the judgment-debtors S. Z. Dinshaw (respondent No. 2) and Shri Rajendra Tiwari for and on behalf of all of them. The executing Court recorded the adjustment where under the judgment-debtors had agreed to vacate the accommodation by the end of February, 1977 and to pay all arrears of rent and costs. The decree-holder was permitted to execute the decree on or after 1-3-1977 in case they did not vacate the premises.