J C GALSTAUN Vs. PRAMATHA NATH ROY

JUDGEMENT

(1.) In this case the appellant, J.C. Galstaun, was defendant in title suit No. 3 of 1918 in the Court of the Subordinate Judge at Alipore. The case had reference to certain land situate to the south of premises belonging to the appellant and was settled in terms of a petition of compromise filed on 28 November 1918.

(2.) Reading the petition of compromise as it now stands, and as it stood on the date of the decree, the first word of the third line on the third page is the word " whole " and the effect of the petition so read has been held to be that while the respondents were to give certain land to the appellant the appellant was to give in exchange an equal quantity of land from the land abutting certain roads, but if this land of the appellant was not sufficient to equalize in area the land which the appellant was to receive, then the appellant would pay for the whole of the land which he was to receive at a certain price. The respondent's contention is that the word "whole " in the place where it occurs as above mentioned has been substituted for the word balance " the real bargain between the parties being that the appellant was to give to the respondents from his land enough to equalize in area the land which he was to receive, but that if he had not enough land at the place specified he should give what he had and pay the respondents for the balance. It appears that the land which the appellant was to get by this exchange was an area of about 8 3/4 cottas and that the land which the appellant had at the place above-mentioned was short of that area by about two cottas.

(3.) The respondents, as plaintiffs, made an application in execution to enforce the consent decree, and it appears that they contended, first that the word " whole " should be " balance " and secondly that even if the consent decree were read as it stands the true meaning and intent thereof was to the effect that the appellant should give all the land he had at the place mentioned and should pay for the shortage only. The execution matter came before this Court on appeal and it was determined between the parties that as the decree stood its true construction was that the pres-sent appellant was to pay money compensation for the entire 8 3/4 cottas. The Court, however, took notice of the fact that the present respondents were contending that the compromise petition had been fraudulently tampered with and that the consent decree had been in this way fraudulently obtained by alteration of the word "balance" into the word " whole. " The Court pointed out that such a question could not be raised in execution and went on to say that: any amendment on the ground that there was fraud in the matter must be made by the Court in the suit in which the decree was passed. It will be open to the Roys to make such application as may be necessary to the Court to make an enquiry in the matter.