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1913 DIGILAW 347 (CAL)

Jogendra Nath Sarkar v. Probhat Nath Chatterjee

1913-08-21

body1913
JUDGMENT 1. This is an appeal by the judgment-debtors against an order made in proceedings in execution of a decree. The decree-holder applied for execution on the 1st June 1912. On behalf of the judgment-debtors objection was taken on the 27th June to the effect that the decree could not be executed inasmuch as it had been adjusted : their case was that, the alleged adjustment had taken place on the 11th February 1912 and that thereunder the decree-holder had agreed to accept the judgment-debt in certain specified installments. It is plain that as the adjustment had not been recorded, the Court executing the decree could not recognise it. Or. 21, r. 2, sub-rule 3, provides that an adjustment which has not been certified or recorded as prescribed in sub-rules 1 and 2 shall not be recognised by any Court executing the decree. The only question for consideration consequently is whether at the time the objection was taken by the judgment-debtors on the 27th June 1912, it was still open to them to apply to the Court to issue a notice to the decree-holder to show cause why the adjustment should not be recorded as certified. Art. 174 of the Second Schedule to the Indian Limitation Act, 1908, provides that an application in this behalf must be presented within 90 days of the adjustment. The adjustment had been made, if the allegation of the judgment-debtors is true, on the 11th February 1912. Consequently the application of the 27th June 1912 would be of no avail, even if it were treated as an application for the issue of notice to the decree-holder. But it has been argued that an application was made on the 11th March 1912, which was in essence an application to the Court to issue a notice to the decree-holder why the adjustment should not be recorded as certified. This application is of no assistance to the judgment-debtors. it merely recites that the judgment-debtors had paid to the decree-holder Rs. 1,700 in different installments, and that the decree-holder had out of kindness to the judgment-debtors agreed to have execution struck off and consented to receive the balance by giving some further time. The petition further states that the execution might be struck off with permission to the decree-holder to make a fresh application for execution. 1,700 in different installments, and that the decree-holder had out of kindness to the judgment-debtors agreed to have execution struck off and consented to receive the balance by giving some further time. The petition further states that the execution might be struck off with permission to the decree-holder to make a fresh application for execution. This application does not recite the terms of the alleged adjustment and cannot be deemed an application of the description contemplated by sub-rule 2 of r. 2. 2. It has been argued in the next place that the application of the 11th March 1912 embodies an acknowledgment of the right of the judgment-debtors to apply in accordance with sub-rule 2 of r. 2 and consequently saves that right from the bar of limitation under sec. 19 of the Indian Limitation Act. This contention is obviously unfounded. The application does not, by implication or otherwise, acknowledge the right of the judgment-debtors to apply to the Court to have the adjustment recorded as certified. 3. It has finally been argued that as the decree-holder has, subsequent to the alleged adjustment, received payments in accordance therewith, he is estopped, and the Court is bound to determine whether there has or has not been an adjustment within the meaning of sub-rule 1. This contention is clearly opposed to the provisions of sub-rule 3. The argument in substance is that the doctrine of estoppel as between the parties litigant may nullify a legislative provision and may compel the Court to act in contravention of the clear provisions of the statute. But even if we assume for the purposes of argument -- and for that purpose alone -- that the doctrine of estoppel applies as between the decree-holder and the judgment-debtors, it does not follow that the Court can recognise an adjustment not duly certified, in contravention of sub-rule 3 which states explicitly that an adjustment not certified or recorded shall not be recognised by any Court executing the decree. This is preeminently a case, where the principle applies that the doctrine of estoppel cannon be invoked to nullify an express statutory provision [Barrow's case (1)]. The view we take is in accord with that adopted by Mr. Justice Chandavarkar in the case of Trimbuk v. Hari Laxman (2) and we may add that we are not prepared to accept the opinion put forward by Mr. Justice Heaton in that case. The view we take is in accord with that adopted by Mr. Justice Chandavarkar in the case of Trimbuk v. Hari Laxman (2) and we may add that we are not prepared to accept the opinion put forward by Mr. Justice Heaton in that case. The result is that all the contentions of the judgment-debtors fail. The order of the Court below is consequently affirmed and this appeal dismissed with costs. We assess the hearing foe in this Court at two gold mohurs.