KISSORY LAL CHOWDHURY Vs. RAJA SEWBUX BOGLA

JUDGEMENT

(1.) The applicant desires the widow and executrix of the deceased defendant to be placed on the record of representing the deceased. The application is resisted on the ground that there is no pending suit-a decree having been made by consent of parties-and further the learned Counsel who opposes contends that the decree cannot be executed and that the parties are bound to have recourse to a suit to enforce his rights.

(2.) It appears from the petition that, by the consent of the defendant, it was ordered that the suit should be withdrawn against the first defendant and that as against the other defendants the terms should be carried out and the property sold in case of default. One of the terms provided for a payment of Rs. 2,000 by the defendant whoop-poses this application to the plaintiff-applicant within 3 weeks of the date of the consent-decree and there is a provision that the same should be declared a charge on certain property mentioned in the decree and in case of default the said property should be sold for the realisation of the said money.

(3.) If the consent-decree had not contained a direction that the property charged should be sold for non-payment this application would have failed on the authority of Abhoyessury Dabee V/s. Gouri Sankur Panday 22 C. 859. Had that decree fallen short of declaring that sale should take place under certain contingencies, it is clear that a separate suit should have been necessary.