JATINDRA NATH ROY Vs. CHANDRA NATH BANERJEE

JUDGEMENT

(1.) This is an appeal on behalf of the decree-holders against an order by which the Court of Appeal below in reversal of the order of the Court of first instance has dismissed an application for execution of a decree, made on the 20th May 1903. It appears that the decree was executed on a previous occasion when the properties of the judgment-debtors were sold. To the present execution, taken out on the 19th May 1909, objection was raised by the judgment-debtors that the decree had been adjusted out of Court, and could not be enforced any longer. The Court of first instance overruled this objection on the ground, amongst others, that the adjustment had not been certified to the executing Court within the time prescribed by law.

(2.) Upon appeal, the Subordinate Judge has held that no question of limitation arises, because the judgment-debtors were kept out of the knowledge of their right to have the adjustment certified by the fraud of the decree-holders; in support of this view, he has placed reliance upon the case of Gadadhar Pande v. Shyamchurn Naik 12 C.W.N. 485. The judgment of the Subordinate Judge, on the merits of the case, is not quite intelligible; but he appears to have held that the decree has been adjusted, although, in his view, one of the most important conditions of the settlement still remains unperformed by the judgment-debtors.

(3.) The decree-holders have now appealed to this Court and on their behalf it has been contended, upon the authority of the cases of Ram Doyal Banerjee v. Ram Hari Pal. 20 C. 32 and Ana Muna Veeno Rana v. Ponnayya 17 M.L.J. 527 that the decree has not been adjusted, and, that, in any event, so long as the adjustment has not been certified to the execution Court, the decree-holders are entitled to proceed with execution. In our opinion, there is no room for controversy that the order of the Subordinate Judge cannot be supported.