NARENDRA NATH ACHARJEE Vs. HIRENDRA NATH ACHARJEE

JUDGEMENT

(1.) This appeal relates to the respondent's interest in a certain tenure recorded as a permanent tenure liable to enhancement of rent. The names of the recorded tenure-holders at a time which is material were : (1) Kedar Acharjee, (2) Chandi Charan, (3) Sashi, (4) Bejoy, (5) Khoka, and (6) Sailen. In the year 1920 the interest of Sashi, Bejoy, and one Kali, who was the father of Khoka and Sailen was purchased by one Manindra Kumar Basu at a sale held in execution of a mortgage decree. Manindra got himself recorded as a tenure-holder and then on 26 January 1931 sold his interest to the present respondent. On 14 April 1931, the landlords instituted a suit for rent and obtained a decree against Kedar, Chandi Charan, Sashi, Bejoy, Khoka and Sailen without impleading either Manindra or the respondent as defendants. In the petition for execution it would seem that only Kedar, Kedar's wife Giribala, and Chandi Charan were made parties. In execution of the decree obtained in that suit the tenure was purchased on 9 April 1934 by the present appellants who are the sons of Kedar. Thereafter the judgment-debtor, Chandi Charan, applied under Section 174 (3), Ben. Ten. Act to have the sale set aside. In this proceeding, a compromise was mooted in which the respondent came forward and offered to join. It is significant that he was permitted without any objection to become a party and a compromise petition was filed whereby it was agreed that on payment of certain sums to the landlords and to the auction-purchasers within a specified time, the sale would be set aside. The entire amount was however not deposited within the time agreed, and an application for an extension of time was made which was allowed. The balance of the stipulated amount was then paid and the sale was set aside.

(2.) Against this order the auction-purchasers appealed, but in their appeal they did not implead the present respondent although the order setting aside the sale was one by which he had clearly benefited. At the hearing of that appeal the judgment-debtor pointed out that the matter could not be disposed of in the absence of the present respondent who was a party to the compromise, but this objection was overruled. The appeal was allowed and the sale was confirmed. The respondent then filed the suit out of which the present appeal has arisen for declaration of title, confirmation of possession and a perpetual injunction. The suit was dismissed by the trial Court, but was decreed on appeal. Against that decision the auction purchasers have appealed, and on their behalf the first contention advanced is that they are purchasers in a rent sale which has been confirmed. This is strenuously disputed by the respondent upon the ground that he was not a party either in the suit for rent or in the appeal from the order setting aside the sale. Para. 4 of the plaint in the present suit contains a clear averment that the sale was not a rent sale, and prima facie this would seem to be so because the plaintiff had admittedly acquired the interest of some of the recorded tenure-holders by a purchase. In Jitendra Nath Ghose V/s. Man Mohan Ghose it was declared that their Lordships of the Judicial Committee would presume, in the absence of evidence to the contrary, that the procedure laid down in Secs.12 and 13, Ben. Ten. Act was duly followed, and that the proper statutory notice was given to the landlords of incumbrances and sales. Had the appellants invoked the provisions of Section 146-A, Ben. Ten. Act, they might perhaps have been able to show that the entire body of co-sharer tenants in the tenure was represented by the persons whom the landlords had impleaded as defendants in their suit for rent. This they did not at-tempt to do either in the suit or in first appeal. They however now contend that the defendants in the landlord's suit must have fallen within one or other of the descriptions contained in Clauses (i) to (iv) of Sub-section (3) of Section 146.A, Ben. Ten. Act. Had that been their contention in the Courts below, the plaintiff, respondent would have had an opportunity of showing that the defendants in the landlord's suit did not satisfy any of those descriptions. The appellants not having invoked the provisions of Section 146-A in the Courts below, the materials now upon the record are not such as to enable me to say that the entire body of tenants was represented in the landlord's suit for rent. In the circumstances established, I must hold that the decree obtained by the landlords is not shown to have been a rent decree. The defence which the appellants actually put forward in the Courts below, and which they also raised in this appeal, was based upon the fact that the respondent had joined in the compromise and had submitted to its terms. To put it shortly, their case was and is, that the respondent, by participating in the compromise, had recognized the decree obtained by the landlord as a rent decree, and he is accordingly estopped from disputing its character as such. In this connexion it is pointed out that the compromise petition describes the respondent as a judgment-debtor. In support of the argument reliance has been placed on the following decisions.

(3.) In Rajunder Narain Rae V/s. Bijai Govind Singh (1837-41) 2 MIA 181 (PC), it was held, that a deed of agreement to compromise conflict-ing claims entered into in the presence of witnesses and solemnly acknowledged in Court, by parties who were mutually ignorant of their respective legal rights, cannot afterwards be set aside upon the plea of ignorance of the real facts when the party seeking to avoid the deed had the means of ascertaining those facts within his reach. The principle enunciated in this decision is not in question in the present matter, because it is nobody's case that any of the parties here were acting in ignorance of their legal rights. In Uttam Chandra V/s. Khettra Nath (1902) 29 Cal 577 compromise petition was filed in a proceeding to set aside a sale, whereby the judgment-debtor, bound himself to pay up the full decretal amount by a certain date. It was agreed that if this was not done the sale should stand good. The entire amount not having been paid by the specified date, the judgment-debtor, in spite of opposition by the decree-holder, obtained an extension of time to pay the balance. When this was tendered the decree-holder refused to accept it. It was held that the judgment-debtor was bound by the terms of the compromise, and was estopped from contesting the validity of the sale. The facts of the present appeal are undoubtedly somewhat similar but in the case cited, the order confirming the sale was made in a proceeding to which the judgment-debtor was a party. Moreover, in the case cited the judgment-debtor was held to have been estopped from con. testing the validity of the execution sale. In the present case it is contended that he is estopped not only from that, but also from challenging the character of the decree itself, which is a very different matter. In Mt. Kunti V/s. Gajraj Tawari (1924) 11 AIR All 826 it was laid down that when parties agreeing not to go to law and not to fight out their disputes, by a mutual arrangement carry into execution their mutual promises, so that the original contract by which they decided to terminate the disputes becomes an executed contract on both sides, and nothing remains to be done, the parties continuing each in the enjoyment of the interest which the other agreed that he should take, the Courts in India applying the rule of equity and good conscience, will not permit either party who has bound himself by the contract and by its performance to repudiate what he has done, and will also prohibit any person claiming under him from attempting the same thing.