Judgment

UNTWALIA, J.:- This is an appeal by certificate filed by the judgment-debtors from the decision of the Calcutta High Court given in appeal from that of a learned single Judge of that Court. The facts of the case clearly demonstrate the fighting attitude of the judgment-debtors to gain time for the satisfaction of the decree.

2. On August 15, 1925 one Indera Chand Kejriwal instituted on the original side of the Calcutta High Court a suit on the basis of a mortgage against Ram Chander Saraogi, Sewbux Saraogi and Tejpal Saraogi for recovery of Rupees 38,000 as principal and Rs. 6,082.8 annas as interest. By an equitable mortgage the property mortgaged consisted of two houses (1) No. 126, Harrison Road and (2) No. 13/2, Syed Salley Lane in the town of Calcutta. On November 26, 1926 a consent decree was passed for a sum of Rs. 41,000 together with interest thereon @ 6.3/4% per annum. On failure of the judgment-debtors to pay the amount the mortgaged properties were to be sold. On 3rd of January, 1929 it was ordered and decreed that the mortgaged property be sold. On 16th April, 1934 Indera Chand Kerjriwal by a deed of assignment assigned his interest in the decree to Mahadeo Prasad Tibrewalla, the respondent in this appeal. On the application of the assignee decree-holder an order was made on the 8th May, 1934 substituting his name in place of the original decree-holder and recording some terms of settlement between him and the judgment-debtors. The amount with interest quantified on that date was Rupees 60,023.12 annas which was to carry an interest of 6.3/4% per annum. Subsequently on an application of the adducer holder one Anandilal Poddar was appointed on the 14th June, 1938 a receiver of rents and profits of the mortgaged properties. A sum of Rs. 10,000 was paid to the decree-holder on the 7th September, 1939 towards part satisfaction of the decree. On the death of Ram Chander Saraogi, one of the judgment-debtors, by order dated the 7th August, 1945, Smt. Parbati Devi, Ananta Kumar Saraogi and Suraj Kumar Saraogi, his heirs and legal representatives, were substituted. They are appellants Nos. 1 to 3 in this appeal.

3. No further payment was made to the decree-holder and eventually a consent order was passed by the Court on the 17th June, 1953 on the basis of the terms of settlement arrived at between the parties which were incorporated in the letter written by the Solicitor of the judgment-debtors to the Solicitor of the decree-holder. The terms of settlement are quoted in full in the appellant judgment of the High Court. The salient terms of the settlement may be stated as follows:-

(1) That the total dues on the date came to Rs. 1,10,000.

(2) That Shri Anandilal Poddar, the receiver was to pay Rs. 35,000,

(3) That a sum of Rs. 40,000 was to be paid by conveying premises No. 13/2 Syed Salley Lane to the decree-holder, and,

(4) That a sum of Rs. 35,000 was to be paid in cash by raising money by execution of another mortgage of premises No. 126, Harrison Road.

4. Anandilal Poddar paid the sum of Rs. 35,000. But nothing further was done by the judgment-debtors pursuant to the settlement arrived at on the 17th June, 1953. Sewbux Saraogi, one of the judgment-debtors, died leaving a Will in which the universal legatee was his daughter Smt. Kapurbai and sole executor appointed therein was Motilal Junujhunwalla, husband of Kapurbai. On the 7th June, 1965 the respondent affirmed a tabular statement for execution of the decree. A learned single Judge of the Calcutta High Court dismissed that application mainly on two grounds - (1) that the terms of bargain between the parties recorded on the 17th June, 1953 were entirely different from the original decree and had the effect of superseding it; the former decree, therefore, was not executable; (2) that the factum of the death of Sewbux Saraogi was not recorded and his heirs were not substituted in the tabular statement. In passing the learned single Judge also expressed the view that t