AJIMUDDIN Vs. BUDHESWAR SARMA

JUDGEMENT

(1.) THIS is a second miscellaneous appeal from the order of the learned Addl. Subordinate Judge, A.V.D. dated 15 -7 -48, by which he affirmed the order of the executing Ct. the Munsiff of Nowgong who had ordered the execution of the decree obtained by the decree -holder to proceed.

(2.) THE facts material to the appeal are these The judgment in the suit was passed on 13 -7 -38 upon a compromise arrived at between the decree holder & the judgment debtor, according to which the decretal amount was to be paid in 4 instalments; the 1st installment was payable on 13 -7 -39; this installment was paid by the judgment -debtor, The 2nd installment was payable on 15 -11 -39, but was not paid. The compromise decree provided that on the failure of the judgment -debtor to pay any instalment as it fell due, the balance of the decretal amount would become payable at once.

(3.) BOTH the Ct. below have negative this contention. The judgment -debtor has raised the same question before us. In support of his contention, the judgment debtor's advocate relied upon a decision of the P.R. of the Allahabad H. Order reported in Genda Lal v. Hazari Lal : A.I.R. 1936 ALL. 21 which no doubt supports his contention. But it is also plain that the learned Judges of the Allahabad H.C. arrived at their decision after distinguishing the case before their Lordships of the P.C. reported in Mungul Pershad v. Girja Kant, 8 Cal 51. It may be conceded that the facts of the case before us are almost identical with the facts present before the F.B. of the Allahabad H.C. Nevertheless, we are unable to persuade ourselves to agree with the view taken by the Allahabad H.C. in view of the decisions of the Calcutta & Madras High Courts, to which we will presently refer & which, we think, are in harmony with the decision of the P.C. reported in Mungul Pershad v. Girja Kant, 8 Cal. 51.