Judgement

Mahajan J.- These are two cross-appeals from the decision of the High Court at Calcutta in its appellate jurisdiction, dated 17-2-1947, modifying the order of the Subordinate Judge of Howrah in Title Execution Case No. 68 of 1936.

2. The litigation culminating in these appeals commenced about thirty years ago. In the year 1923, one Durga Prasad Chamria instituted a suit against the respondents, Radha Kissen Chamria Motilal Chamria and their mother Anardevi Sethani (since deceased) for specific performance of an agreement for sale of an immovable property in Howrah claiming a sum of Rs. ll,03,063-8-3 and other reliefs. The suit was eventually decreed on compromise on 19-4-1926. Under the compromise decree the plaintiff became entitled to a sum of Rs. 8,61,000 from the respondents with interest at 6 3/4 per cent. with yearly rest from the date fixed for payment till realization. Part of the decretal sum was payable on the execution of the solenama and the rest by installments within eighteen months of that date.

3. Within fifteen months from the date of the decree a sum of Rs. 10,00,987-15-6 is said to have been paid towards satisfaction of it. No steps were taken either by the judgment-debtors or the decree-holder regarding certification of most of those payments within the time prescribed by law. The judgment-debtors after the expiry of a long time made an application for certification but the decree-holder vehemently resisted it and declined to admit the payments. The result was that the Court only recorded the payment of the last three installments which had been made within ninety days before the application and the judgment debtors had to commence a regular suit against the decree-holder for recovery of the amounts paid, and not admitted in the execution proceedings. In the year 1929 a decree was passed in favour of the judgment-debtors for the amount paid by them and not certified in the execution. In the meantime the decree-holder had realized further amounts in execution of the decree by taking out execution proceedings on two or three occasions. The amount for which a decree had been passed against the decree-holder was also thereafter adjusted towards the amount due under the consent decree.

4. On 17-3-1933 the decree was assigned by Durga Prasad to the appellant Keshardevi Chamira. The execution proceedings out of which these appeals arise were started by the assignee on 10-8-1936 for the realization of Rs. 4,20,693-8-9 and interest and costs. This execution had a chequered career. To begin with, the judgment debtors raised an objection that the assignee being a mere benamidar of Durga Prasad Chamria had no locus standi to take out execution. This dispute eventually ended in favour of the assignee after about five years fight and it was held that the assignment was bona fide and Keshardeo was not a benamidar of the decree-holder.

5. On 17-7-1942 Keshardeo made an application for attachment of various new properties of the judgment-debtors and for their arrest. Another set of objections was filed against this application by Radha Kissen Chamria. He disputed the correctness of the decretal amount, and contended that a certain payment of Rs. 1,60,000 should be recorded and certified as made on 28-5-1934, and not on the date the sum was actually paid to the decree-holder. This objection was decided by the Subordinate Judge on 11-9-1942 and it was held that the judgment-debtors were liable to pay interest on the sum of Rs. 1,60,000 up to 12-8-1936, and not up to 4-7-1941 as claimed by the assignee. On appeal the High Court by its judgment dated 22-6-1943 upheld the decree-holder s contention, and ruled that the judgment-debtors were liable to pay interest up to 4-7-1941 on this sum of Rs. 1,60,000. The judgment-debtors then applied for leave to appeal to the Privy Council against this decision and leave was granted. On 13-2-1945 an application was made to withdraw the appeals and withdrawal was allowed by an order