SHITAL PRASAD SINGH Vs. SURENDRA NATH CHATTERJI

JUDGEMENT

(1.) This is an appeal by four judgment-debtors against an order of the Subordinate Judge of Bhagalpur dated 15th February 1917, reviving an execution case in which, on 3rd April 1946, he had recorded an order of dismissal on full satisfaction.

(2.) It arises in the following circumstances. The decree under execution was a mortgage decree obtained in the year 1938 by four brothers Jitendra Nath Chatterji, Surendra Nath Chatterji, Nripendra Nath Chatterji and Brajendra Nath Chatterji against as many as twenty six judgment-debtors. The execution was taken out for the realisation of Rs. 14,000 and odd as the decretal amount. On 3rd April 1945, a satisfaction petition was filed in the Court of the Subordinate Judge purporting to be on behalf of all the decree-holders but signed by only one of them Surendra Nath Chatterji, It also bore the signature of Mr. B.K. Neogi, Advocate, who had represented the decree-holders in the suit. By this petition, it was stated that the parties had agreed to settle the matter at Rs. 12,000 remitting the remaining decretal amount, that out of this amount Rs. 2,400 was already deposited in Court and the balance Rs. 9,600 was being paid in cash to the decree holders that day. Three days later, on 6th April 1945, a petition was filed by Amarendra Nath Chatterji and others representing Brajendra Nath Chatterji deceased, asserting that they were not parties to the compromise, and that the petition of satisfaction has been filed in fraud of them. A similar petition was filed on the 10th by Nripendra Nath Chatterjee and the representatives of Jitendra Nath Chatterji deceased. They sought the setting aside of the order of (dismissal and ?) revival of the execution case. This has been allowed. Hence, the present appeal.

(3.) Mr. Ragho Saran Lal for the appellants urges, first of all, that it is not open to the decree-holders applicants to question the com-promise because, by their subsequent conduct, they have acquiesced in it. He relies upon the fact that, at a later stage, they have applied for their shares of the money said to have been taken by Surendra Nath Chatterjee from the judgment-debtors. The circumstances in which this happened are clear from the papers to which we have been referred. On 23rd May 1945, Jitendra Nath Chatterjee and Nripendra Nath Chatterji applied to the Court for the prosecution of Surendra Nath Chatterji and others under Section 196, 206 and 209, Penal Code, in connection with the filing of the petition of satisfaction. This petition wag dismissed by the Subordinate Judge, who was of the opinion that no criminal offence was made out. Before him Surendra Nath Chatterji expressed his willingness to deposit the shares of the other decree-holders out of the amount of Rs. 9600 received by him, and in accordance with this, the Subordinate Judge, on 18th February 1946, directed him to make the deposit. It was only after this order was passed that the other decree holders, from time to time, applied to the Subordinate Judge for directing deposit of their shares. There was at no stage any acceptance by them of the alleged compromise. Under the decree, they were certainly entitled to share in the amount realised by Surendra Nath Chatterji. All that they asked for was their shares, but they did not give up their rights to proceed against the judgment-debtors for tbe balance.