Judgment

VAIDIALINGAM, J. :- The appellant in this appeal, by special leave, has argued his came in person and attacks the judgment of the Allahabad High Court dated January 21, 1969 reversing the decrees of the two Subordinate Courts.

2. The facts leading upto this appeal may be briefly stated: The respondent, who is the landlord, under whom the appellant is a tenant, obtained an ex parte decree on March 9,1957 in suit No. 74 of 1956 in the Court of the Additional Munsif, Kanpur. The decree was not only for eviction, but also for payment of rent or damages and mesne profits, as well as costs.

3. The appellants pleaded that there was a compromise entered into between him and the respondent in and by which the manner of extinguishment of the decree was arrived at. That compromise, according to the appellant was entered into on July 25, 1957. The terms of the compromise have been incorporated in the judgment of the Additional District Judge dated March 27, 1961 in Misc. Civil Appeal No. 688 of 1960 and in other proceedings, and it is unnecessary for us to refer to them. It is enough to note that if the amounts agreed to be paid as per its terms, were paid the decree for eviction would stand extinguished retrospectively.

4. The plea of the appellant was that he has made the payments in accordance with the compromise and the last of such payments was on June 16, 1960. As noted earlier, according to him, the date of the compromise was July 25, 1957. It was his claim that when the last payment was made, the decree for eviction obtained against him on March 9, 1957 stood extinguished and that the landlord-respondent has no further right to execute the decree.

5. The landlord had filed an application on July 19, 1960 for executing the decree in Suit No. 74 of 1956. Prior to that, the appellant appears to have taken certain proceedings and asked for stay of execution till the disposal of some criminal case and also for adjustment of payments.

6. We are more particularly concerned with the application filed by the appellant on September 3, 1960, before the Trial Court. That application was under Order XXI Rule 2 (2) C.P.C. In that application, the appellant, after referring to the compromise and the various payments, claimed to have been made by him under the compromise, prayed for recording an adjustment of the decree. This application was opposed by the appellant (sic) (respondent?) on three grounds; (a) There has been no compromise, (b) There has been no payment, and (c) The application under Order XXI R. 2 is barred by limitation, as it has been filed beyond 90 days from July 25, 1957.

7. The contentions of the landlord-respondent were accepted by the trial court, which by its order dated October 8, 1960, dismissed the application filed by the appellant under Order XXI Rule 2, on the ground that the application having been filed beyond 90 days from July 25, 1957 was barred by limitation. It is the view of the learned Munsif that as the case of the appellant was that the compromise was entered into on July 25, 1957, the period of limitation for filing an application for recording adjustment of the decree will start from that date. The application filed by the appellant was dismissed on this sole ground without investigation into the truth of the compromise and the payments.

8. The appellant carried the matter before the learned Additional Judge, Kanpur in Misc. Civil Appeal No. 688 of 1960. Before the learned District Judge, the appellant raised the contention that the view of the Trial Court that the period of limitation starts from July 25, 1957 is erroneous. He pleaded that as the decree obtained by the landlord will get extinguished only when the last payment was made, namely, on June 16, 1960, the period of limitation of 90 days for filing the application for recording adjustment of the decree will have to be computed from that date. As the application has been filed within 90 days from June 16, 1960, the executing court has acted erron