KISHORI LAL MARWARI Vs. KUMAR CHANDRA NARAIN DEO

JUDGEMENT

(1.) The order under appeal was an injunction issued at the instance of the plaintiff restraining defendant 1 from putting up to sale certain properties in execution of a mortgage decree obtained by him for the sale of those properties. The mortgage had been executed on 27 February 1911, in favour of the appellant for one lakh of rupees with interest by Thakur Pratap Narain Deo, the proprietor of the Lachmipore estate. This gentleman died on 23 November 1913, childless and leaving several widows. By a will he appointed his senior widow, Thakurain Kusum Kumari to be administration of the estate and to have authority to adopt a son to him. She obtained a grant of Letters of Administration to the estate on 5 August 1915. The mortgage suit of the appellant was instituted on 25 April 1928, the claim being laid at Rs. 2,00,000 after remitting Rs. 15,000; and the defendant was the administration representing the estate.

(2.) On 27 May 1928 the lady executed a compromise agreement under which the suit was to be decreed for Rs. 13,4,000 with future interest and costs. The agreement was filed in Court on 6 June 1928, but the lady resiled from it by a petition which she presented on 4 September 1929. Later she reconsidered her position and on 25 January 1930, presented a petition withdrawing her petition of withdrawal.

(3.) Then on 28 February 1930 a final decree was passed in accordance with the compromise and it is this decree that defendant 1 as decree-holder seeks to execute. The lady on 2 June, 1930 reopened her challenge to the compromise by a fresh petition which was dismissed by the Subordinate Judge on 29 August 1931. Against that order she brought Miscellaneous Appeal No. 259 of 1931 before the High Court. Among the interlocutory proceedings in that appeal were an order of remand under Order 41, Rule 25, dated 15 November 1934, by which the Subordinate Judge was directed to enquire into some alleged payments and to send a finding on that point; and also as to whether in view of S. 6 of the Santhal Parganas Regulations, the decretal amount was in excess of what was permissible under the damdupat rule. The finding of the Subordinate Judge was re turned to the High Court on 17 the April 1935, and was to the effect that legally the plaintiff's dues amount to Rupees 1,23,680.10-5, whereas the compromise decree was for Rs. 1,38,804-0-9, this in. eluding Rs. 3,872-8-0 as costs. The decree, holder however challenged these findings asserting that the accounts presented by him were correct and the amount decreed was not in excess of that due. On 19th March 1937 Appeal No. 259 of 1931 was disposed of in this Court. It was noted: The appellant does not now challenge the correctness of the judgment and decree of the Court below, but accepts the correctness of the decree passed by that Court.