KHOKA DAS Vs. MAHENDRA NATH BISWAS

JUDGEMENT

(1.) This is an appeal by a decree-holder from an order passed by the Subordinate Judge of Khulna dismissing an application for execution of a decree for costs. The question which arises for consideration in the appeal is one of some nicety. The decree was passed in a suit which the decree-holder as plaintiff had instituted for recovery of possession of four items of property and also for certain other reliefs. There was a very large number of defendants in the suit. As regards property No. 1, the suit was dismissed. One Jogendra Nath Shome, who was defendant l in the suit, claimed 8 annas share in properties Nos. 2 and 3 and the other 8 annas share in those properties was claimed by defendants 2 to 6. In property No. 4, the said defendant 1 claimed to be owner of the landlord's interest and in that property the tenants interests were claimed by certain persons amongst whom were defendants 22 and 22-Ka. The plaintiff succeeded in obtaining a decree for possession in respect of properties Nos. 2, 3 and 4, and also certain other reliefs amongst which was a relief in the shape of a decree for account as against defendant 1, Jogendra. Two appeals were thereupon preferred to this Court from that decree; Appeal No. 71 of 1931 by defendant 1 and Appeal No. 43 of 1931 by defendants 2 to 6.

(2.) In the former appeal there was a compromise arrived at as between the plaintiff and defendant 1, and that appeal was disposed of on 12 April 1933 in accordance with the terms of the said compromise. In that appeal the other defendants had been made respondents but they were not parties to the compromise and the appeal was dismissed in so far as it was against them. The latter appeal remained pending and after running its usual course was eventually dismissed on a date with which we are not concerned here During the pendency of the latter appeal, an application for execution which has given rise to the appeal now before us was filed by the plaintiff as decree-holder, and it was only for execution of the portion of the decree of the Subordinate Judge by which costs were awarded to the plaintiff as against defendants 1, 2 to 6 and 22 and 22-ka jointly. The Subordinate Judge has held that by reason of the compromise which the plaintiff had entered into with defendant 1, the plaintiff had absolved and released that defendant from all liability in respect of costs as provided for by the decree under execution and that, therefore, the present application for execution in respect of the said costs, which had been awarded to the plaintiff as against the defendants jointly including defendant 1, could not be allowed to be proceeded with as against the defendants other than defendant 1. It is from this order that the present appeal has been taken.

(3.) One of the contentions that have been urged before us on behalf of the decree-holder is that as a matter of fact under the compromise which was effected as between the plaintiff and defendant 1 and which was given effect to by the decree of this Court in Appeal No. 71 of 1931, there was no release granted to defendant 1 or satisfaction recorded as between the decree.holder and the said defendant in respect of the decree for costs. In this connexion, reliance has been placed upon the different clauses of para. 5 of the petition of compromise which set out the terms of the said compromise. We are of opinion that this contention is not well founded and if the terms contained in the several clauses of that paragraph have to be given effect to simultaneously it must be held that so far as defendant 1 is concerned, it was not the intention of any of the contracting parties that that defendant should have any further liability under the order for costs which had been made in the decree of the trial Court which is the decree now under execution. Whatever may have been said in Clause (a) of that paragraph, it is perfectly clear to our mind upon a reading of Clause (g) of the paragraph that it was the intention of the parties that the claim which the plaintiff has as against defendant 1 under the order for costs that had been made in the decree was to be treated as satisfied.