A K M ZAKARIA Vs. CHOUDHURI GOLAM MARTUZA

JUDGEMENT

(1.) The respondent Taheriatannessa brought a suit being Title Suit No. 66 of 1946 in the Court of the Subordinate Judge, Berhampore, for declaration of title and recovery of possession of certain properties. That suit was compromised and a decree in accordance with the terms of compromise was passed. One of the terms of the compromise was that on the plaintiff paying to the present appellant A.K.M. Zakaria Rs. 6000/- fay the end of Falgun, 1355 B.S., Zakaria will give to the plaintiff possession of the properties of Schedules Ka, Kha and Ga. On 4-4-1949, Taheriatannessa applied for execution of the decree on a statement that she had deposited the amount in accordance with the terms of the compromise decree. On 6-5-1949, Zakaria applied for withdrawal of the amount in deposit. That application was as a result of Taheriatannessa's objection, unsuccessful. On 10-5-1949, Zakaria filed an objection under Section 47, Civil P.C., in which he stated that the deposit was a conditional deposit and so was not a valid perfor ce of the term of the compromise and consequently the decree could not be executed. This application was, in the first instance, rejected by the executing Court on 27-6-1949, the Court being of opinion that a valid deposit had been made. That order was, however, set aside on appeal and the case sent back for rehearing. On 16-12-1949, Taheriatannessa executed a deed of conveyance in favour of respondent 1 Choudhury Golam Martuza. This conveyance was registered on 8-3-1950. In the meantime Choudhury Golam Martuza filed a petition to the executing Court praying to be substituted in place of the decree-holder on the ground of assignment in his favour and for permission to continue the execution. On 6-2-1950, an application was filed by Taheriatannessa and Zakaria stating the Miscellaneous Case which was started on Zakaria's application under Section 47, Civil P. C., had been compromised and that the terms being that the deposit be held to be bad the money should be returned to her and the property should remain with Zakaria. On 22-2-1950, she however resiled from the position and through another pleader filed another application in which she stated that the compromise petition was filed under some misapprehension and that the matter had not really been compromised. Thereafter, she filed a further petition on 22-7-1950 in which she stated that she disowned the petition filed on 22-2-1950, and wanted to stand by the compromise. The executing Court held that by the deed of conveyance there was an assignment only of the property in suit and that Choudhury Golam Martuza was not entitled to be substituted so as to continue the execution proceedings. It rejected his application of 21-1-1950, and in view of the last application filed on behalf of Taheriatannessa decided that the matter had been settled and it directed that the solenama be recorded. The final order passed by the executing Court is in these words:

(2.) Two appeals were taken from this decision by Choudhury Golam Martuza, one against the order refusing to substitute him, the other against the compromise decree. These appeals have been allowed by the learned District Judge. The learned District Judge is of the opinion that Order 22, Rule 10 Civil P. C., applies to proceedings in execution and there having been an assignment of the property in suit the petitioner Choudhury Golam Martuza being a transferee of the decree-holder's interest in the property involved in the decree is entitled to be substituted in his place and to continue the execution case. He held therefore that the decision of the learned Sub-ordinate Judge could not be upheld and sent back the cases to the learned Subordinate Judge 'for execution of the decree after the disposal of the Section 47 case according to law.'

(3.) It is against this decision of the learned District Judge that the present appeal has been filed.