HARNATH RAI BRIJRAJ Vs. HIRDAI NARAIN KUMAR

JUDGEMENT

(1.) This appeal is by the decree-holders and arises out of an execution proceeding in which the learned Subordinate Judge executing the decree held that the decree-holders were not entitled to realise in execution the sums claimed by them as due under the decree except for a small amount of interest .which, in his opinion, remained unsatisfied on account of the decretal dues. There is also a cross-objection by the judgment-debtors.

(2.) The facts giving rise to this appeal are that the decree-holders obtained by consent a decree on the Original Side of the Calcutta High Court for a sum of Rs. 26,246 against the judgment-debtors 'respondents with interest at 6 per cent per annum and also for incidental costs as taxed under the allocator. The decree further provided for payment in instalments of a sum of Rs. 22,279-12-0 with costs in full satisfaction of the decree. The material terms of settlement are embodied in paragraphs 4 to 7 of the compromise decree. In order to appreciate the points urged, it is necessary to refer in extenso to the terms embodied in the paragraphs in questions :

(3.) It appears that on 30-6-1941, the decree-holders levied Execution Case No. 134 of 1941. In that execution case, they claimed that they were entitled to execute the decree for the entire amount because the terms of settlement had not been carried out by the judgment-debtors. It is not disputed that Rs. 500 on account of part payment of cost was actually paid on the 30th of Phagun 1346 Fasli, but the decree-holders claimed that, although the allocatur assessing the cost had been served on the parties, yet the balance of the cost had not been paid by the judgment-debtors within the time allowed as required by paragraph 4(b) of the compromise decree. The case of the decree-holders was that the service of the allocatur of taxed costs had been duly effected, and yet within one month from the date of the service the balance of costs had not been deposited. The decree-holders further claimed that Rs. 1,000 which was payable towards the decretal amount on or before the 30th of Savan 1346 Fasli, corresponding to the 29th of August 1939, had not also been paid. On these grounds, the decree-holders proceeded to levy execution. It is to be noticed that by the time the execution came to be levied, the first instalment of Rs. 2,000 fell due on the 30th of Savan 1347 Fasli, which equals 17th of August 1940. The judgment-debtors objected to the execution and contended that they had made no default in payment of the dues to the decree-holders as required by the terms of the decree. Their case was that there had been no service of the allocatur of taxed costs on them and hence they could not make any payment as provided in Clause (b) of paragraph 4 of that agreement. Their further case was that they had tendered a sum of Rs. 1,000 to the decree-holders as provided in Clause (c) of paragraph 4. The decree-holders, however, did not accept the same and, on the contrary,, referred them to their attorney in Calcutta, who also in turn refused to accept the sum.