KAIKEI DEI Vs. DEBENDRA LENKA

JUDGEMENT

(1.) THE Petitioner is the decree -holder. He obtained a preliminary decree for foreclosure on 8 -7 -1971 against the opposite party for Rs. 2154.85. As no payment was made, he filed an application for final decree on 19 -1 -1973. On 27 -7 -1973 the opposite party filed objection alleging that on 21.11.1971 there was a compromise between the husband of the Petitioner and the opposite party that only a sum of Rs. 2100. 00 would be paid towards the decretal dues. Rs. 1900/ - was paid to the Petitioner's husband on that date and a receipt was granted by him. The opposite party accordingly prayed that the compromise would be recorded and the amount of Rs. 1900/ - would be deducted from the decretal dues. The learned Munsif of Bhubaneswar made an enquiry and accepted the version of the opposite party that there was a compromise and payment. It is against the order dated 24 -6 -1974 upholding the adjustment that this civil revision has been filed by the decree -holder.

(2.) THE finding of the learned Munsif that there was an adjustment out of Court between the husband of the Petitioner and the opposite party is a pure finding of fact which cannot be assailed in civil revision. Mr. Rao accordingly advanced the sole contention that in a final decree proceeding foreclosure there cannot be any adjustment out of Court and the alleged compromise is hit by the Orissa amendment to Order 23, Rule 3, Code of Civil Procedure.

(3.) ORDER 23, Rule 3. Code of Civil Procedure was amended by the Orissa High Court on 30 -3 -1954. After amendment it stands thus: