ANANDA PRIYA BAISHNAVI Vs. BIJOY KRISHNA RAY

JUDGEMENT

(1.) This appeal is directed against an order of the First Subordinate Judge of Tippera and arises out of certain proceedings in execution of a decree. The facts which have led up to it are shortly these: The judgment-debtor respondent Bejoy Krishna Ray brought a Title Suit (No. 1004 of 1917) against the decree-holder appellant Sreemutty Ananda Priya Baishnavi in the Court of the Subordinate Judge at Camilla, which was dismissed, There was an appeal to the High Court which was decreed on the 14 December 1921. On the 14 March 1922 Bejoy Krishna filed an application for leave to appeal to the Privy Council which was granted on the usual terms on the 10 April 1922. On the 21 July, 1922 the appeal was allowed to be withdrawn it having been represented to the Court on the 14 July that a compromise was likely to be effected. In the meanwhile on the 31 March 1922 the decree-holder had applied for execution of the decree amounting in all to Rs. 4,237-5-6. Execution proceedings followed and in the course of these the judgment-debtor on the 31 July 1922 filed an objection under Order XXI, Rule 2 of the C.P.C., praying the Court to record an amicable adjustment of the decree alleged to have been arrived at between the parties on the 29 June 1922 whereby the decree-holder relinquished her claim to costs in both the Courts on condition that the judgment-debtor withdrew his appeal to the Privy Council. To this the decree-holder replied by a petition filed on the 28 October, 1922 denying that there had been any adjustment of the decree. The Court then went into evidence and allowed the objection of the judgment-debtor as stated above.

(2.) On behalf of the appellant two points only have been urged before us. It is first contended that the alleged adjustment does hot come under Order XXI, Rule 2 of the C.P.C., and that in any view of the matter an oral agreement in substitution of the decree could not be proved having regard to the provisions of Section 92 of the Evidence Act. Secondly, it is urged that upon the evidence and regard being had to all the facts and circumstances of the case the Court below ought to have held that the adjustment had not been proved.

(3.) In my opinion the first of these contentions is without substance. The words "otherwise adjusted" in Rule 2(1) of Order XXI appear to be wide enough to cover such an adjustment as is stated to have taken place in this instance.