LODD GOVINDOSS Vs. RAMDOSS VISHNU DOSS

JUDGEMENT

(1.) THIS case comes before us in somewhat curious form. It is an appeal by the judgment- debtor against an order of Mr. Justice Bakewell dismissing an application by the judgment- creditor s alleged legal representative for an order in the terms of an alleged compromise which modified the terms of a decree which had been obtained by the judgment-creditors. Mr. Justice Bakewell dismissed the application on the ground that Order XXIII did not apply to execution proceedings (See Rule 4.) "We agree with Mr. Justice Bakewell. Mr. Justice Bakewell also referred to Order XXI Rule 2 and he held with regard to this rule, that, as it relates only to payment or adjustment of a decree and a record thereof being made by the Court, it appeared to negative the recognition by the executing court of anything less than the payment or adjustment. Before us the argument has turned upon the construction of Order XXI Rule 2(1) and it has been contended on behalf of the judgment-debtor that Mr. Justice Bakewell was wrong in the circumstances of this case in declining to direct an inquiry as to the terms of the alleged compromise which, under the Judge s summons taken out by the judgment-creditor, the court was asked to record as an adjustment under Order XXI Rule 2(1). When the Judge s summons came on an earlier occasion before Mr. Justice Bakewell an application was made for an adjournment in order that oral evidence might be taken on the question of the compromise. We are told that this application was made by both parties. Mr. Justice Bakewell s note does not show whether the application was made by the judgment-creditor or on behalf of both parties. But for the purposes of the question to be decided it seems to us immaterial whether the application was a joint application or was made by the judgment-creditor on his own behalf. Now it is contended on behalf of the judgment-debtor that, in view of this application, the judgment-creditor is not now entitled to say "I will take the benefit of Mr. Justice Bakewell s order dismissing the application and will not press for an inquiry as to the terms of the compromise." It was also contended that Mr. Justice Bakewell was wrong in not inquiring into the terms of the alleged compromise. It is common ground that, when the summons eventually came on before Mr. Justice Bakewell, the parties were at issue as to what were the terms of an alleged compromise. The judgment-creditor was willing that the adjustment should be recorded if it embodied the terms of the compromise according to the judgment-debtor s version. In this state of things we do not think what the judgment-debtor is entitled to ask the learned judge to go into the question of what the terms of the compromise in fact were. Mr. Seshpchariar on behalf of the judgment-debtor has called our attention to various authorities; but no case has been cited to us where an order has been made for an inquiry as to what were the terms of an alleged compromise on the application of the judgment-creditor under Order XXI Rule 2. The cases cited would seem to be cases where the judgment-debtor has asked for an inquiry as to the terms of the compromise upon which he relies by way of answer to the application for execution. That of course is a very different case from this. The fact, that in the first instance the creditor asked for an. order that the terms of the compromise might he inquired into, cannot of course give the learned judge jurisdiction to deal with the matter, if according to the true construction of order XXI Rule 2(i) he had no jurisdiction; and the fact that the learned Judge adjourned the summons for evidence to be taken as to the alleged compromise does not of course give him jurisdiction. We are asked on behalf of the judgment-debtor to treat his affidavit as a substantive application under Order XXI Rule 2 and we have been referred to the case of Alathoor Badrudeen v. Gulam Moideen (1911) 2 M.W.N. 473 where in proceedings under the old Section 258 the court was asked to treat the counter-petition of a judgment-debtor as an application to Compel the judgment- creditors to certify the adjustment. The learned Judges say. We might be inclined to accede to this request if there was anything before us to show that the counter-petition was put in within the time allowed to the judgment-debtors by the Limitation Act." In the case before us the counter-affidavit was no doubt put in within the time allowed by the Limitation Act; but we do not feel disposed to grant the indulgence to the judgment-debtor of treating his counter- affidavit as a substantive application under Order XXI Rule 2(ii). The observations of the learned Judges in Alathoor Badrudeen v. Gulam Moideen (1911) 2 M.W.N. 473 has reference to the facts of that particular case. To treat the affidavit as an application is to ignore the express language of Order XXI Rule 2(ii) which requires a notice to show cause against recording satisfaction of the decree. The judgment-debtor is still in time and can take action, if he thinks fit. We are of opinion that the appeal fails and must be dismissed with costs. C.M.P. No. 2490 of 1912 is also dismissed with costs.