BURJORJI SHAPURJI SHETH Vs. MADHAVLAL JESINGBHAI

JUDGEMENT

(1.) These are two appeals from decisions in darkhast proceedings before the First Class Subordinate Judge of Ahmedabad. Both the appeals raise the same points in respect of two different respondents, and I can deal with them in the same judgment.

(2.) The facts giving rise to the darkhast proceedings are that in August, 1930, four suits were proceeding in the Court of the First Class Subordinate Judge of Ahmedabad between the present appellant and the two respondents. The appellant was suing each of the respondents in separate suits Nos. 1446 and 1527 of 1927 for a sum of Rs. 18,000 and interest, and then there were two other suits against the appellant which were in the nature of cross suits. On August 14, 1930, the parties executed a document, which is Exh. 15, under which they left it to Mr. Mavlankar, who was the appellant's pleader in the suits, to settle the matters in dispute between the parties, and by that document, to which I will refer more in detail in a moment, the parties admitted that they had referred the matter to Mr. Mavlankar to settle out of Court all the suits and that he had given his decision in the terms stated. Then darkhast proceedings were started in December, 1931, by the appellant to enforce the payments allowed by Mr. Mavlankar, and the answer of the defendants to the darkhast proceedings was that they did not lie by virtue of the agreement of August 14, 1930. To that the appellant retorted that that agreement had not been carried out by the defendants, and could not, therefore, be relied upon. The learned Subordinate Judge held that the agreement, though not carried out as to certain stipulations as to time, nevertheless, had been substantially carried out, and that it was competent to him to grant relief by way of extending the time for certain payments to be made under that agreement. Accordingly, he extended the time for payment under that agreement and dismissed the plaintiff's darkhast in both suits, and from those decisions these appeals are brought.

(3.) The question turns primarily on the construction of Exh. 15, to which I will now refer. It is signed by the appellant and the respondents in the two appeals. It recites that "certain disputes are going on between us three", and then it refers to the four pending suits before the First Class Subordinate Judge of Ahmedabad. Then it refers to the fact that Mr. Mavlankar is an advocate for the appellant and that notwithstanding that they had insisted on his settling the matter out of Court according to his desire. Then in paragraph 2 it states.- "Pursuant to that reference you have decided as follows." Then the first two sub-paragraphs deal With what I have called the two cross suits and provide that those should be dismissed. Then sub-paragraph 3 deals with the two suits by the appellant against the two respondents and it provides that the two respondents shall apply to the Court to pass full decrees against them as prayed in the plaints and that they shall withdraw all the objections raised by them. Then Sub-clause (4) is in these terms: We Somchand and Madhavlal undertake jointly and severally to pay Rs. 27,000, in words twenty-seven thousand, viz., Rs. 13,500 of the share of Somchand and Rs. 13, 500 of the share of Madhavlal within 15 days from today towards the two decrees to be passed in suits Nos. 1446 of 1927 and 1527 of 1927. If we do so within 15 days Barjorji will give up the remaining decretal balance by way of concession and get both the decrees marked satisfied. If we both jointly and severally cannot pay the said sum of Rs. 27,000 within the said time, both the decrees will remain in force against us for the full amount and Barjorji will be entitled to recover the full amount thereof.