HRIDOYMOHAN SANYAL Vs. KHAGENDRA NATH SANYAL

JUDGEMENT

(1.) We have heard learned advocates on both sides at some length and we must express our acknowledgment to them for the very careful way in which this case has been argued before us.

(2.) This is an appeal by the decree-holder or rather the person who has applied for execution of an agreement against the judgment and order of the learned Subordinate Judge affirming the decision of the Munsif by which the application of the appellant was dismissed. The facts are shortly these:

(3.) The appellant obtained a decree for money against the respondents dated 17 December 1913. There were intermediate executions which it is unnecessary to relate now. In one of the execution proceedings the parties came to terms and a compromise was entered into between them dated 16 September 1922, by which the decree-holder gave up a part of his claim and it is alleged in the petition of compromise that the judgment-debtor entreated the decree- holder to accept only Rs. 350 in satisfaction of the decree including costs. They paid Rs. 100 in cash and the balance was agreed to be paid in certain instalments. It was further agreed that if there was default in payment of one of the instalments, the decree-holder would be entitled to realize the entire- sum by way of execution against the properties of the judgment-debtors. The first instalment was due in October 1923. The present application was made on 8th November 1926. It has been found by both the Courts below that this application was made within three years of the due date, as holidays intervened. Both the Courts below have dismissed this application on the ground that it is barred under the provisions of Section 48, Civil P.C., as it was made more than 12 years after the date of the original decree passed in the year 1913. It was argued in the Court below that the present petition is a continuation of the petition of 1922 which ended in the compromise. That argument the learned Subordinate Judge refused to accept and, in my judgment, he gives good reasons for rejecting it. He held that the nature and the scope of the two petitions of 1922 and 1926 are quite different and, therefore, the last petition cannot be considered as a continuation of the previous proceedings. It was also argued that under the circumstances of the case it falls within proviso (b), Sub- section (ii), Section 48, Civil P.C. The Subordinate Judge also rejected that contention. The learned advocate for the decree-holder, however, while not giving up the points that were urged in the Court below has presented the case in a different aspect. His argument amounts to this, that the decree was adjusted by the compromise dated 16 September 1922 and the result of the adjustment was that the original decree was extinguished, That being so, the appellant might have brought a suit upon the agreement dated 16 September 1922; but as both the parties agreed that the money should be realized by execution, the executing Court was given jurisdiction to proceed with the execution of the claim and give relief to the appellant. In support of his contention he has relied upon the case of Thakoor Dyal Singh v. Sarju Pershad Misser [1893] 20 Cal. 22, Sheo Golam Lall V/s. Beni Prosad [1880] 5 Cal. 27 and Subramania Pillai V/s. Corera A.I.R. 1925 Mad. 457. The learned advocate for the respondent naturally takes exception to the case being presented in this new form. If the appellant can support his contention from the records of the case, it would only be a matter for costs.