NEDURI RAJANNA Vs. DONTUKUNTI SESHAMMA

JUDGEMENT

(1.) The proceedings have taken a somewhat irregular course. The plaintiffs applied to execute the decree dated the 15 of October 1919, and filed E. P. No. 27 of 1922, dated 1 February 1922. Subsequently the plaintiffs and some of the defendants entered into a compromise on the 21 February 1922, and an application E. A. No. 182 of 1922 was made under Order 21, Rule 2 to the executing Court on the same date for the recording of the adjustment. So far as the facts can be gathered from the papers before me this application was made jointly by the plaintiffs and all the defendants excepting Defendants Nos. 1 and 7. It was adjourned to the next day and ultimately dismissed on the 4 of March. It was dismissed on the ground that it was not pressed, but I am now told that it was only the decree-holder's vakil that appeared and said that the application was not pressed. The next step was taken by the plaintiffs who again applied for execution on the 4 of May 1922 by filing E. P. No. 556 of 1922. It was resisted by the 10 defendant who on the 4 of July filed E. A. No. 629 of 1922 asking that the Court should record under Order 21, Rule 2 the compromise to which I have referred. The lower Courts have dismissed the application of the 10 defendant and he has filed the present appeal.

(2.) The application E. A. No. 629 of 1922, filed as it was more than 90 days after the adjustment referred to, may at first sight appear to be barred by limitation; but I must say that this is not the ground on which the order of dismissal is based and, in my opinion, the application is not in fact barred. As the Subordinate Judge rightly points out E. A. No. 182 of 1922 has not been properly disposed of, the present application cannot be construed as being different from it. Though it is termed a fresh application it is, in substance, a continuation of the previous one.

(3.) Clause 1 of Order 21, Rule 2 provides that the decree-holder shall certify the adjustment to the Court and the Court shall thereupon record the adjustment.