RAMNATH SARMA Vs. BAIDYANATH CHATTERJEE

JUDGEMENT

(1.) THIS is an appeal against an order of the Additional Subordinate Judge, Birbhum, holding that the decree -holder shall not be able to execute the decree personally against the respondent. The appellant before us is the decree -holder and the appeal arises out of an objection under Section 47, Civil P. C., filed by the respondent in Money Execution Case No. 3 of 1951.

(2.) ON 8 -6 -1950 a decree was passed in favour of the appellant for the sum of Rs. 13,833/1/0 against the firm of Contractors' Syndicate and seven partners thereof, one of whom is the present respondent. The decree -holder put the decree into execution by attachment and sale of the personal properties of the partners of the said Syndicate and of the partnership property. The said application for execution was made on 6 -5 -1951. On 14 -11 -1951, the respondent before us put in an objection to the said execution. The respondent raised various grounds of objection before the executing Court, One of such grounds was that the decree was an ex parte decree and when the respondent was about to start a proceeding under Order 9, Rule 9, Civil P. C., the decree -holder with the consent of the objector referred this matter to his lawyer and it was finally settled and agreed between the parties that the decree -holder would execute the decree against the firm and would not proceed to execute the same personally against the objector. In support of the said ground the respondent (objector in the execution case) relied upon a written deed of agreement ('ekramama') executed by the decree -holder. The said agreement, according to the objector, was kept in the custody of the decree -holder's pleader Sri Krishnadas Mazumdar of Rampurhat. The said deed of agreement ('ekrarnama) has been produced and proved in the said execution ease, and it is necessary to refer to the terms thereof. It is signed by the decree -holder. It recites that the decree -holder has obtained decree for Rs. 13,833 -1 -0 in the Additional Court of the Subordinate Judge, Suri, against the objector as a partner of the Syndicate as also other partners thereof. It then states that although the said decree is enforceable against the objector, he has retired long ago from the said partnership business, and as he requested the decree -holder not to attach and sell his own personal movable and immovable properties in execution of his said decree against him personally, the decree -holder promises that he shall not hereafter be entitled to execute the said decree against the objector, nor to make a prayer for his arrest nor to pray for permission under Order 21, Rule 50, Civil P. C. That this document was signed by the decree -holder is not disputed. The objector contended before the lower Court that in view of the said agreement there cannot be any execution proceedings against him and the present execution proceedings should be dismissed. It appears that at the hearing of the objection the decree -holder gave evidence before the Subordinate Judge at Suri. In the course of his evidence he stated as follows: 'I executed this agreement. It was kept with Krishna Das Baboo. I had the talk with Baidyanath to the effect that they would not make the bill ready for payment by C. P. W. D. and for that Baidyanath, Kiriti and Nilmani would bear the expenses and if they would get the bill ready then I would not execute the decree against Baidyanath personally. After his talk I executed the agreement. The agreement waskept with Kiriti Baboo as now I could make itover to Baidyanath Baboo without getting thebill ready.' On behalf of the objector some witnesses were examined. The objector himself also gave evidence before the lower Court. According to his evidence the agreement in question was executed under the following circumstances. The decree -holder had obtained an ex parte decree against him. On that very day when the ex parte decree was passed the objector had come late in the Court and he was about to file an application for setting aside the ex parte decree. The decree -holder and his pleader then told him that there was no necessity for filing any re -hearing case as the decree passed could not be executed against him personally. Then there was a talk for writing out an agreement and it was written on that date. The document was kept in the custody of Krishnadas Babu, pleader.

(3.) THE learned Advocate appearing on behalf of the appellant (decree -holder) contended before us that the case of the objector, even if it is accepted, would amount to an adjustment of the decree, but that adjustment was not recorded. That being so, the executing Court could not take any notice of the said adjustment. He referred us to the provisions of Order 21, Rules 1 and 2, Civil P. C.