KARTIC CHANDRA MUKHERJEE Vs. BATA KRISHNA ROY

JUDGEMENT

(1.) This is an appeal by one Kartic Chandra Mukherji a judgment-debtor in an execution proceeding and it raises a question of limitation. There was a suit for accounts being Title Suit No. 198 of 1911 in the Court of the Subordinate Judge of Purulia and it was decreed on 16th September 1916 against one Mukund Lal Laik. This decree was modified by the High Court at Patna on 6 December 1920. In 1921 the judgment-debtor died leaving a widow Jugol Kishori. There were two executions at Dhanbad. A third execution case was transferred to Asansole and executed there on 23 March 1925. Upon, an objection under Section 47, Civil P.C., there-was a Miscellaneous Case No. 49 of 1925 and it was dismissed by the Asansole Court on 7 August 1925. Then there was an appeal to this Court being Miscellaneous Appeal No. 361 of 1925 and it was dismissed by Page and Graham JJ. on 25 July 1927 [see . Thereafter an application for leave to appeal to His Majesty in Council was filed. While it was pending before a Bench presided over by the Chief Justice and C. C. Ghose J., a compromise was arrived at between the judgment-debtor Jugol Kishori on the one hand and the decree holders Nos. l and 2 on the other, the decree-holder No. 3 being respondent 3 not appearing. The compromise petition was filed on 5 December 1927. It will be relevant to mention the following terms of the compromise. The decretal amount was split up and two-third was taken to represent the share of respondents 1 and 2 (who are the present respondents in this appeal) and one. third was taken to represent the share of respondent 3. The arrangement was that the appellant Jugol Kishori would pay the amount in certain instalments. Clause 5 of the compromise runs as follows: That if default is made in respect of two consecutive instalments payable to respondents 1 and 2 or respondent 3, execution will proceed for the whole of the instalments due to respondents 1 and 2 or respondent 3 as the case may be.

(2.) It was further provided that the appeal to His Majesty in Council would not be proceeded with further, that the Execution Case No. 58 of 1925 pending in the Asansole Court would stand dismissed and that certain properties described in Schedule A and situated in Behala in the District of 24-Parganas had been accepted by respondents 1 and 2 as security. It was also stated that the compromise was beneficial to the minor respondent 1 and lastly in Clause 12 it was stated that the terms had been explained to and approved of by the appellant and the said terras had been settled in behalf of the appellant by her grandson (Kartic Chandra) Mukherjee who had authority from her to compromise the case.

(3.) It may be added that this Kartic Chandra Mukherjee is now the appellant in this appeal. Upon these terms the prayer in the compromise petition was, first, that the Privy Council appeal might be disposed of in terms of the petition and secondly that leave be given to record the said compromise in behalf of respondent 2 who was the guardian of the minor respondent 1. In accordance with these prayers, an order was made and drawn up in the form of a decree on 20 February 1928. The material question in this appeal will be whether time should run against the decree-holders as from 20 February 1928 or as from 6 December 1920. To proceed with the history of this litigation: On 1 August 1928 the judgment-debtor Jugal Kishori executed a deed of gift in favour of the present appellant and two others. Jugal Kishori died and upon a certificate of non-satisfaction being taken in the Purulia Court, execution was transferred to Alipore Court on 28 August 1930, the execution case there being numbered as execution case No. 240 of 1930. The execution petition Ex. C which is printed at pp. 6 and 7, Part 2 of the paper, book gives the date and number of suit as "Title Suit No. 198 of 1911 as adjusted by P.C. A. No. 38 of 1927 decided on 20 February 1928". The judgment-debtors are Gopi Bala Devi and Indumati Devi the two daughters of Jugal Kishori. At that time the appellant Kartic Chandra Mukherjee was not mentioned. The year and the date of the decree are given "as T.S. No. 198 of 1911 as adjusted by P.C. A. No. 38 of 1927 dated 20 February 1928". That execution was sought as from the date of the so-called adjustment on 20th February 1928 would further appear from cols. 7 and 10 of the petition wherein it was mentioned that there had been default in payment of the instalments due in June and September quarter of 1928 and the whole of the remaining instalments had thus become due. Upon the objection of the aforesaid two ladies, Misc. Case No. 23 of 1931 was started and it was dismissed on 13 July 1932. There was an appeal, namely M. A. No. 391 of 1932 and it was disposed of by the High Court on 17 May 1935. It will be useful to state here that in this objection there was no question raised that the decree of 20 February 1928 was in any respect invalid. The present appellant Kartic filed a claim under Order 21, Rule 58 Civil P. C, but it was dismissed for having been filed too late. He thereupon filed T.S. No. 151 of 1933 on 29 July 1933. But on 7 December 1934 he had the suit withdrawn on his own petition. The execution Case No. 240 of 1930 which had been pending at Alipore was dismissed for default on 17 January 1934. Thereupon proceedings took place which have given rise to the present appeal. On 13 June 1934 there was an application for execution filed against Kartic Chandra and others and on the petition of the decree-holders an adjustment of the decree of 20th February 1928 was recorded by the Purulia Court on 1 May 1934. The decree was sent for execution to the Second Court of the Subordinate Judge at Alipore on 15 May 1934. On 13th June 1934 the present Execution Case No. 106 of 1934 was started at Alipore. The petition for execution which is printed at pp. 22.24 of the paper book shows that the execution was being sought against Kartic Chandra Mukherji and others as judgment-debtors in respect of the same decree which was mentioned in the previous Execution Case No. 240 of 1930, namely: T.S. No. 198 of 1911 of the Court of the Subordinate Judge to Purulia as adjusted by P.C.A. No. 38 of 1927 decided by the High Court on 20 February 1928.