AZIZUR RAHMAN CHOUDHURY Vs. ALIRAJA CHOUDHRY

JUDGEMENT

(1.) This appeal has been preferred by the judgment-debtors from an order passed by the District Judge of Oachar affirming on appeal an order passed by the Sadar Munsif at Silchar overruling the judgment-debtors objection in connexion with certain execution proceedings. The proceedings in the Courts below have been so irregular that it is necessary to set out the facts somewhat in detail in order to understand what has exactly happened. The execution proceedings relate to a decree that was passed on 23 November 1921, in a suit which had been instituted by two persons Aliraja Choudhury and Elim Miah Chowdhury as the plaintiffs against Mansur Miah, Abdul Jalil and Azizur Rahman as the principal defendants. The decree declared the plaintiffs right of easement on a certain pathway, directed the removal of certain obstructions that had been caused therein and granted a perpetual injunction restraining the defendants from putting up such obstructions in future. The defendants thereupon preferred an appeal from the aforesaid decree to the Court of the Subordinate Judge of Cachar. During the pendency of this appeal one of the defendants, namely, Mansur Miah died and at the hearing of the said appeal it was represented to the Court on behalf of the defendants that there had been adjustment of the said decree and that, therefore, the appeal would not be proceeded with. The adjustment was thus brought to the notice of the Court on 7 May 1923, and on that day the Court disposed of the appeal in the following words: Appellant's pleader says that he will not proceed with the appeal as his clients who are alive informed him that there has been a compromise out of Court. The appeal is, therefore, dismissed for default.

(2.) From the certified copy of this order which is on the record it appears that the order was shown to two pleaders, one Babu R.R. Dutt and the other Babu B.L. Dhar and they put down their initials under the said order with the endorsement "Seen." It may be presumed that these two gentlemen were the pleaders of the parties to the said appeal. On 15 September 1923, an application was filed purporting to have been made by the two decree-holders Aliraja Chowdhury and Elim Miah Choudhury for the execution of the said decree. On 13 November 1923 the two defendants Abdul Jalil and Azizur Eahman who were then the surviving judgment-debtors, Mansur Miah having died, as I have already stated, during the pendency of the appeal, objected to the execution going on, on the ground that the decree that was sought to be executed had been adjusted out of Court by the judgment-debtors having given the decree-holders a pathway somewhat different from what had been awarded to the decree- holders by the decree and because on accepting the same the decree-holders had given up their claim to the decretal costs. This objection was taken up for the consideration by the learned Munsif before whom five witnesses were examined on 8 December 1923. The fact that the said witnesses were examined appears from the record of the depositions of the said witnesses but it is curious that the order-sheet does not contain any entry under that date showing that any witnesses had been so examined. One of these witnesses so examined was one of the decree-holders Elim Miah who supported the objection that was put forward on behalf of the judgment-debtors and who stated that there had been such an adjustment and who further represented to the Court that his name had been signed in the execution proceedings by his son, but that he himself did not want to proceed with the execution. The record does not show that the learned Munsiff arrived at any finding on the question as to whether there was such an adjustment or not. But on 10 December 1923, an application was put in on behalf of the judgment-debtors in which they stated that if the Court would care to go to the locality it would be apparent to the Court that there had been such an adjustment and that the parties had been acting upon the said adjustment for a good long time. The Munsif went to the locality on 24 December 1923 as appears from certain statements that are to be found in the petitions that were subsequently filed on behalf of the parties. I may note here again that this local investigation is not referred to in the order-sheet of these execution proceedings and there is no trace whatsoever therein as to what transpired in the course of this local investigation.

(3.) The next order in the order-sheet which has any bearing on this matter is dated 5th January 1924 which shows that on that date a petition was filed on behalf of the judgment- debtors stating that on the spot at the time of the local investigation there were certain proposals for giving the decree-holders another pathway and that the said proposals had been accepted and the ultimate result of the negotiations was embodied in a draft agreement a copy of which was filed along with the petition. The judgment-debtors prayed that effect might be given to this agreement that was reached between the parties on the local investigation as aforesaid. On this the decree-holders took time once on 5 January 1921 till 12 January 1921, again on 12 February 1921 and thereafter again on 12feh February 1924 till 1 March 1924. On this day the Court made an order to the effect that the parties should bring evidence to prove the compromise mentioned in petition 210. Petition 210, it may be stated, was the petition which had been filed on behalf of the judgment-debtors on 5 January 1924 alleging that there had been a compromise on the-spot and filing along with it the draft agreement to which I have already referred. Thereafter the matter was again adjourned from time to time till 10 May 1924. On the last mentioned day an objection was taken on behalf of the decree- holders that the compromise could not be given effect to by reason of the provisions of Order 21, Rule 2, Civil P.C. This objection must have referred not to the compromise that was alleged to have been arrived at on the spot because that was in the course of the execution proceedings themselves and the fact that there had been such a compromise was brought to the notice of the Court well within 90 days from the date on which it had been arrived at but it must have referred to the earlier adjustment which is said to have taken place during the pendency of the appeal. There is a note of this objection in the ordersheet, but it does not appear that the Court came to any finding as regards this objection at any time during the pendency of the proceedings.