Heramba Nath Bandopadhya vs Surendra Nath Mittra and Another

This is an appeal by Heramba Nath Bandopadhya, the defendant No. 1 in the suit, from a decision of the Subordinate Judge of Dhanbad, dated the 5th December 1917, in which he passed a decree in favour of the plaintiffs.

The suit was instituted before the Subordinate Judge on the 12th September 1916 by the plaintiffs as heirs and representatives of Charu Chandra Mittra, claiming certain declarations the effect of which was, put shortly, to confirm their title to a colliery, known as the Ranidih Colliery, free from all encumbrances and to prevent the defendant No. 1 from selling the property under an attachment which he had obtained in the Calcutta High Court before judgment in a previous suit (No. 300 of 1911) brought by him against the then owners of the colliery, who are the remaining defendants in the present suit.

The site of the colliery was originally acquired by one Sashi Bhusan Chattopadhya, the father of the defendants Nos. 4 to 6 and husband of the defendant No. 7, under a lease for a term of 999 years granted by Gopi Nath Chattopadhya on the 8th October 1907. By a registered-deed, dated the 8th October 1908, the lessee transferred a 4 annas share in the lease to Naba Chandra Chattopadhya, the defendant No. 2, and a 2-annas share to Kunja Behari Dutta, the defendant No. 3, retaining the remaining 10-annas share himself. On the 24th August 1908 Sashi Bhusan and his transferees, the defendants Nos. 2 and 3, executed a mortgage of the entire 16-annas share in the lease of the colliery to Heramba Nath Bandopadhya, the appellant, to secure a cash advance of Rs. 30,000 at 15 per cent, interest per annum and a commission of 5 annas per ton on the, amount of coal raised. On the 5th September 1&08 Sashi Bhusan died and his 10-annas share in the colliery passed to his four sons. One of the sons has since died. His three surviving sons and his widow who, between them, now hold his 10-annas share are respectively the defendants Nos. 4 to 7. On the 17th April 1909 Heramba Nath Bandopadhya, the mortgagee, under a deed of management executed by the defendants Nos. 2 to 7, was placed in charge of the colliery as managing agent under the name of Acbard & Company of which firm he was the sole partner, and on the same day the defendants Nos. 4 to 7 as heirs of Sashi Bhusan agreed to sell him their 10-annas share in the colliery in the benami name of his wife Anilabala Debi, receiving from him the sum of Rs, 5,000 as earnest money. On the 10th September 1910 the defendant Heramba ceased to be the managing agent of the colliery and charu Chandra Mittra, the predecessor-in-interest of the plaintiffs, was put in possession by the heirs of Sashi Bhusan who were then the 10-annas share-holders. It is the plaintiffs'' case that on the same day an agreement in writing was entered into between the heirs of Sashi Bhusan (the defendants Nos. 4 to 7) and Charu Chandra Mittra for the sale of the 10-annas share to the latter. This document was not produced in evidence, but sometime later, viz., on the 27th August 1913, these defendants in fact transferred their interest to Charu Chandra by a registered deed of that date, which recites that the assignment of the colliery to Charu Chandra was in accordance with a letter dated the 10th September 1910 and acknowledges payment of part of the oonsideration money at various dates between the 10th October 1910 and the date of the assignment.

On the 23rd March 1911 the defendant Heramba instituted the suit numbered 300 of 1911 in the High Court of Calcutta against all the 16-annas share-holders of the colliery (the present defendants Nos. 2 to 7) to recover a sum of Rs. 32,000 old for advances made and expenses incurred in connection with the management of the colliery during the time of his agency, and, two days later, on the 25th March, applied to the Court in that suit under Order XXXVIII, rule 5, for an attachment before judgment of the colliery, on the allegation that the defendants were about to dispose of it by sale to Charu Chandra Mittra and had no other means out of which the olaim could be satisfied. On the 27th March l9ll the High Court granted an order nisi under Order XXXVIII, rule 5, calling upon the defendants in that suit to show cause why they should not furnish security to satisfy any decree that might be passed against them and in default thereof, why the colliery should not be attached and, at the same time, the Court ordered an interim attachment to issue until such cause had been shown. On the 19th May the defendants in that suit appeared to show cause. The defendants Naba Chandra Chattopadhya and Kunja Behari Dutta, the owners respectively of 4-annas and 2-annas shares in the colliery, gave an undertaking on that occasion not to alienate or in any way deal with their respective shares in the colliery during the pendenoy of the suit and the defendant Abani Bhusan Chattopadhya undertook not to deal further with his share during the pendency of the suit. His sharp, as one of the heirs of his father, was 2**** annas. The remaining defendants gave no such undertaking''. Thereupon the Court adjourned the further hearing of the order nisi until the hearing of the suit and ordered the interim attachment, previously granted, to be withdrawn so far as the said 3 defendants were concerned, but to continue so far as the others were concerned until the final disposal of the suit

. 5. As a matter of fact, the writ of attachment under the order nisi of the 27th March had not, at that time, been served, nor, indeed, did it issue from the office of the High Court at calcutta until the 29th May although dated the 27th March 1911. It was subsequently despatched to Purulia in the Manbhum district for service and according to the peon''s return which has been referred to in evidence, it was served on the 14th June at the colliery. As it has been argued that the process served was not an attachment of the property at all but only an order restraining the defendants personally from alienating the property, it is desirable to set out the operative part in full. It reads as follows:-

To the defendants above named.

"Wheieas by an order of Court made in this suit and dated the twenty seventh day of March, one thousand nine hundred and eleven, it was, amongst other things, ordered that an attachment should issue out of and under the seal of this Court prohibiting the defendants, until the further order of this Court, from alienating the colliery known as the " Ranidih Colliery " in the district of Manbhum, by sale, gift or otherwise and also prohibiting all persons from receiving the same by purchase, gift or otherwise. It is ordered that the defendants be and they are hereby prohibited and restrained until the further order of this Court from alienating the said Ranidih Colliery '' in the district of Manbhum by sale, gift or otherwise and that all persons be and they are hereby prohibited from receiving the same by purchase, gift or otherwise. "

A preliminary decree in the aforesaid suit was passed in March 1913 and on the report of the Official Referee, was made final on the 22nd November 1915 for a sum of Rs. 40,550 in favour of Heramba. In April 1911 a suit, numbered 345 of 1911, was instituted in the High Court of Calcutta in the name of Anilabala Debi, wife of Heramba, against Abani Bhusan Chattopadhya and others, the l0-annas share holders, claiming the return of the sum of Rs. 5,000 paid as earnest money under the contract of sale of the 17th April 1909.

On the 21st June 1911 the defendants Naba Chandra and Kunja Behari instituted a suit, numbered 638 of 1911, in the High Court of Calcutta against Heramba, claiming damages for wrongful and malicious attachment of their shares in the colliery on the ground that the order made on the 19th May in Heramba''s action (No. 30Q of 1911) had directed the attachment as against them to be withdrawn and that he had, nevertheless, wrongfully attached their property.

Sometime in 1911 a further suit was instituted by Gopi Nath Bandopadhya and others, the landlords of the colliery, before the Subordinate Judge at Purulia against Abani Bhusan and others, the 16.annas lessees, and Heramba Nath Bandopadhya claiming arrears of rent and royalty. This suit was numbered 412 of 1911.

8.On the 2nd March 1912 Heramba Nath brought a suit before the Subordinate Judge at Purulia, which was numbered 106 of 1912, against Abani Bhusan and others, the present defendants Nos. 2 to 7 and charu Chandra Mittra, the predecessor-in interest of the present plaintiffs, to enforce the mortgage of the 24th August 1908. On the 29th July 1913 a compromise was arrived at between the parties in that suit and was filed in Court accompanied by a petition on behalf of all the parties in the suit except the plaintiff No. 4 Srimatee Kalitara Debi, the widow of Shashi Bhusan (the present defendant No. 7). The petition recited that all the parties had settled the suit in the terms of the compromise, but as Kalitara Debi had not filed a vakalatnama that day, it asked that the same might be filed within 7 days and a decree passed against her and the other defendants in the terms of the compromise when the vakalatnama should be filed. It appears that no vakalat: and been signed by Kalitara Debi on her own behalf, although she had signed one as guardian on behalf of her minor son Bidhu Bhusan who was also a defendant in that suit. This was subsequently procured and filed and on the 30th August 1913 a decree was passed in the terms of the compromise. About the same time, viz., on the 27th August the defendants Abani Bhusan and others executed a deed of assignment of their 10-annas interest in the colliery to Charu Chandra Mittra and on the 5th September 1913 the defendants Nos. 2 and 3 assigned the remaining 6.annas share to Charu Chandra Mittra,

One of the main contentions in the case depends upon the construction of the compromise come to in Heramba''s mortgage suit No. 106 of 1912. The plaintiffs contend that, on the true construction of the compromise agreement, Heramba undertook to enter satisfaction in his suit No. 300 of 1911 in which he had attached the mortgaged property and to forego all claims thereto upon payment of a sum of Rs. 1,20,000, the amount which by the terms of the compromise he was to receive in respect of his mortgage decree in Suit No. 106 of 1912. He, on the other hand, contends that this part of the agreement was subject to a condition precedent to be performed by the defendants in the mortgage suit which had not in fact been fulfilled. The terms of the compromise were as follows:

"i. There is to be consent decree immediately in Suit No. 106 of 1912 (Heramba Nath Banerji v. Abani Bhusan chatterji and others) in the Court of the Subordinate Judge of Purulia in the following terms: --- a) There is to be a mortgage decree of (Rs. 1,20,000) one lakh and twenty thousand including interest, commission and costs, and all the defendants except the minor defendant will be personally liable for the amount decreed with interest and costs in addition to the mortgage security. (b) Interest is to run on the decretal amount at the rate of (15) fifteen per cent. per annum with six-monthly rests from date hereof until actual payment. (c) The plaintiff will not be entitled to execute the deore3 within six weeks from the date hereof but if the decretal amount with interest be not paid to him within the aforesaid time, he will be entitled to execute the decree with interest at the rate aforesaid. (d) On the payment of the decretal amount (Rs. 1,20,000) one lakh and twenty thousand with interest accruing due thereon by the defendant No. 7, Charu Chandra Mittra, within (6) 34 Ind. cas. 953 : 23 C. h. J. 115 : 21 O. W. N. 158 six weeks from the date hereof, the plaintiff will, if his claim under the decree is not in the meantime satisfied, transfer the decree herein in favour of the defendant No. 7 Charu Chandra Mittra or with his consent to any other person who may pay the said sum with interest as aforesaid, at the cost of the assignee and without recourse to the plaintiff, and thereupon the said defendant will as discharged from further acting as Receiver and will not be liable in that event to account for this management. (e) This is to be certified as being for the benefit of the minor defendant. 2. The following terms are also agreed by and between the parties. (a). Heramba Nath Bannerji will, on payment of the decretal amount, i.e., rupees (1,20,000) one lakh and twenty thousand with interest in the said suit No. 106 of 1912 to him within six weeks from the date , hereof, cause, at the cost of the defendants in the said suit, satisfaction to be entered in Suit No-. 300 of 1911 (Herambo Nath Bannerji v. Naba Chandra chatterji) and Suit No. 345 of 1911 (Anila Bala Debi v. Abani Bhusan chatterji.) (6). Naba Chandra chatterji and Knnja Behary Datta will withdraw the suit instituted by them in the Calcutta High Court against Heramba Nath Bannerji for damages for malicious attachment now pending in the said Court within six weeks from the date hereof. (c). Charu Chandra Mitra indemnifies Heramba Nath Banerji against the claim of the plaintiffs Gopi Nath Banerji and others in Suit No. 412 of 1911 of this Court in respect of all subsequent rents and royalty accruing due till the payment of the decretal amount. (d). All the defendants in the said Suit No, 106 of 1912 undertake that they and each of them will file in Court express authority in favour of their respective Pleaders to consent to these terms. (e). In ease the said defendants fail to proceed and file such authority as in Sub-clause (i) of Clause(2) 27 C. 428 : 4 C. W. N. 169 : 14 Ind. Dec. 282. hereof within three weeks from the date hereof, the terms contained in sub clauses (a) to (e) of Clause (2) hereof will not come into operation"

. 9. On the 12th September 1913 the sum of Rs. 1,22,000, the decretal amount with interest and costs then due under the compromise mortgage decree, was deposited in Court by charu Chandra Mitra in favour of the appellant Heramba, the plaintiff in that suit, and on the 26th September 1913 this sum was withdrawn on behalf of the appellant.

It will be observed on referring to Clause 2 of the compromise agreement above set out that in arriving at a settlement of that suit the parties endeavoured to settle also the several other actions which were then pending between them. The appellant, however, contends that the terms contained in Clause 2 of the compromise agreement never became operative because Sub-clause (d) of Clause 2 was not complied with, and by Sub-clause (e) it was provided that unless the express authority mentioned in Sub-clause (d) a it was Court be he on his and not from their property merely the in is that of order Clause filed within three weeks terms 2 agreement should come into operation. In these circumstances, contends entitled proceed execute decree Suit No. 300 1911 to sell attached satisfaction decree. Hence, have brought present claiming declaration already referred to. The respondents further contend issued behalf appellant suit properly served process served, fact writ attachment at all binding but an owners enjoining them parting with interest, appellant?s right, if any, lies damages against persons enjoined gives him no lien upon property

11 It appears that an application was made on behalf of the judgment debtors in Suit No. 300 of 1911 to have satisfaction entered in that suit on the ground of the agreement contained in Clause 2 of the compromise in the mortgage suit. This application was made in August 1914 before the High Court at Calcutta and was refused, the Court being of opinion that the terms contained in Sub-clauses (d) and (e) of Clause 2 had not been complied with and further that the application was time-barred. In our opinion, that decision does not bar the present suit

. 12. The main issues raised before the Subordinate Judge in the present suit were whether the appellant was bound to enter satisfaction in the High Court Suit No 300 of 1911 in pursnance of the terms of the compromise in Suit No, 106" of 1912 and whether the terms of the compromise had been complied with by the defendants in that suit so as to bind the parties by the terms of Clause 2 and secondly, whether the attachment of the property in suit was properly effected in Suit No. 300 of 1911.

The learned Subordinate Judge, as far as we are able to follow his reasoning, came to the conclusion that the compromise agreement was not expressed in clear and unambiguous terms and that, therefore, it was permissible under the second proviso of Section 92 of the Evidence Act to admit oral evidence as to the real meaning and intention of the parties expressed in the written agreement. He accordingly relied upon a statement of charu Chandra''s Manager, Ram Prasad Mittra, who was at Purulia when the compromise was come to. This witness said that he did not know the details of the compromise but he knew that on payment being made of the decretal amount all disputes between the parties would be settled. The Judge accordingly found that all that was necessary to bring into operation the terms of Clause 2 of the agreement was that the'' decretal amount should as paid and that the conditions in Clause 2 (e) ceased to be binding on payment of the decretal amount. It seams clear that the learned Subordinate Judge entirely misapprehended the scope and effect of Section 92 of the Evidence Act. Oral evidence for tie purpose of contradicting written documents or ascertaining the intention of the parties is not admissible. [See Balkishen Das v. W. E. Legge 27 I.A. 58 : 22 A. 149 : 4 C.W.N. 153 : 2 Bom.L.R. 523 : 7 P.C.J. 6Q1 : 9 Ind. Dec. 1130 (P.C.).] It is true that by the sixth proviso of the Section evidence is admissible of facts which show in what manner the language of a document is related to existing facts, but the evidence relied on by the learned Subordinate Judge was not given with the object contemplated in the sixth proviso. Its object clearly was to vary the terms of the written contract by showing an intention, not expressed therein, to treat the condition contained in Sub-clauses (d) and (e) of Clause 2 as inoperative as soon as the decretal amount mentioned in Clause 1 should have been paid. Although it is true that an ambiguous agreement affords no protection to the person seeking to rely upon it in order to avoid an obligation, he would otherwise be under, it would appear that the learned Subordinate Judge did not consider the element of ambiguity from this point of view. Had he done so it is not easy to see, when one considers the nature of the ambiguity which he conceived to exist, how this would have assisted the present plaintiffs. It is unnecessary, however, in our opinion, to pursue this matter as the document does not appear to us upon a true construction to contain any ambiguity at all. It consists of two Clauses, the first of which provides that there shall be a consent decree upon certain terms enumerated in Sub-clauses (a) to (e). These Sub-clauses clearly provide that there shall be a mortgage-decree for a named sum including, interest, commission and costs, for which all the defendants except the minor were to be personally liable. Interest from the date of the decree is to run at 15 per cent, per annum, the decree is not to be executed for six weeks. During that period Charu Chandra Mittra had the option, if the claim was not in the meantime satisfied (presumably by the other defendants in the suit), of paying off the decretal amount and receiving an assignment of the decree from the decree-holder. The second Clause related to matters outside the scope of the suit and could not properly form a part of the decree in that suit, but might be regarded as part (1), of the terms of compromise and as such would be binding upon the parties when recorded. It related to claims in the various other suits pending at that time between the parties or some of them and provided that each should forego their respective claims against the others, and as presumably the Pleaders representing the parties in the mortgage suit would not necessarily be authorised in that suit to compromise claims between the respective parties in other suits, it provided that the defendants should file in Court express authority in favour of their respective Pleaders to consent to these terms. This was no doubt stipulated in order to put an end once and for all to the chance of any dispute arising thereafter as to the authority of the respective Pleaders to bind their clients, and by Sub-clause (e) it was expressly provided that unless the authority should b filed within 3 weeks from the date of the compromise, the terms of Clause 2 should not come into operation. It is difficult to see in what respect the agreement can be said to be ambiguous. The mortgage suit was to be compromised on the terms mentioned in Clause 1, whether or not those mentioned in Clause 2 should come into operation, and those mentioned in Clause 2 were only intended to come into operation, if and when the defendants should expressly authorise them in the manner therein indicated. If the conditions imposed by Sub-clauses (d) and (e) of Clause 2 were not performed, then the mutual obligations imposed by the earlier part of the Clause ceased to be operative. In our opinion it is difficult to read this document in any other manner. The learned Judge was impressed by the fact that the decretal amount of Rs. 1,20,000 was more than the total amount claimed in the mortgage suit which was Rs. 88,588 and that, therefore, the decretal amount was probably arrived at by including a portion of the appellant''s claim in Suit No. 300 of 1911. We have great doubts whether he was entitled to consider this question at all but, in any event, it leaves out of consideration the fact that the sum due at the date of the decree for principal, interest and commission under the mortgage of the 24th August 1908 amounted to about Rs. 1,24,000. This calculation, it is true, is based upon an increased rate of interest after the first year as provided by the mortgage bond, and it is contended that the increased rate was not legally recoverable. It does not appear, however, that any objection upon this score was raised in the mortgage suit and it is, in our opinion, not legitimate to speculate as to how the decretal amount was arrived at. It is further contended that as the Court recorded the compromise on the 30th August 1913, that is, more than 3 weeks after the date of the compromise itself, it was not competent to the appellant to contend that the provisions of Sub-clauses (d) and (e) of Clause 2 had not been complied with. It was argued that before recording such a compromise the Court was bound to ascertain for itself that it was valid and binding and if in fact the condition had not been at that time fulfilled, Clause 2 of the compromise would not have been recorded and, therefore, any failure to comply with that condition must be taken to have been waived by the parties. The learned Judge considered that as the compromise had been recorded by the Court under the provisions of Order XX111, Rule 3, of the Civil Procedure Code, it must be regarded as a lawful agreement and that if the appellant''s contention were accepted as to the effect of Clause 2, there was no agreement at all so far as that Clause was concerned and that the Court would not record mere negotiations not binding upon the parties. We are unable to accede to this argument. The agreement was in fact filed on the 29th July and when the decree was passed on the 30th August, there was nothing to show that the Court made any enquiry as to whether the conditions had been fulfilled or that this matter was even mentioned. The Court might well have assumed in the absence of any mention of the matter that the condition had been fulfilled and, in any event, it was no part of the Court''s duty to ascertain whether the parties had complied with the condition. It might involve a long and intricate enquiry which the Court was, in our opinion, not bound to enter into. The agreement, on the face of it, was lawful and what the ultimate effect of it might be was not a matter which it was the duty of the Court at that time to enquire into.

It further remains to consider whether the condition imposed by Clause 2 (d) was in fact complied with. This question depends mainly upon the effect of certain vakalatnamas which have been produced in evidence and on the oral testimony of Ananga Mohan Bhattacharji, a Pleader engaged on behalf of Kalitara Debi and her minor son Bidhu Bhusan in the mortgage suit at Purujia in which the compromise was come to. He was called as a witness on behalf of the plaintiffs in the present suit. From his evidence it appears that the draft compromise was written out in the Bar Library at Purulia on the afternoon of the 29th July after discussion between the Pleaders and others representing the parties. They then looked into the record to ascertain from the vakalatnama filed how far each of the parties had given authority to their Pleaders to compromise the suit. It appeared that no vakalatnama had been filed by Srimati Kalitara Debi the defendant No. 4 in that suit, on her own behalf, although she did sign one on behalf of her minor son Bidhu Bhusan who was also a defendant. The petition asking for the compromise decree (Exhibit 6), therefore, prayed that she might be allowed 7 days to file a vakolatnama. This was, in fact, not filed until the 30th August, the time for doing so having been extended by order of the Judge. It was urged on behalf of the respondents that as this petition only asks for 7 days for filing the vakalatnama and as the compromise in Clause 2 allowed 3 weeks for filing express authority, it ought to be assumed that all the parties were agreed that the express authority required bad in fact been filed by all the parties except by Kalitara Debi and as they were all anxious to get the matter through, the time was reduced to 7 days. We are quite unable to draw any such inference from the terms of this petition. As Kalitara Debi had filed no vakalatnama at all, it was quite obvious that there was nobody who could compromise the suit on her behalf much less agree to terms relating to matters outside the suit and, therefore, it was necessary in any event that some authority on her behalf should be provided, and this was undoubtedly the object of asking that the decree should only be passed after her authority had been obtained. The 7 days would expire on the 5th August but the time was subsequently extended by order, as appears from the order sheet (Exhibit 11), to the 30th August. On that day Kalitara Devi''s vakalatnama was in fact filed. It also purports to be executed on behalf of Abani Bhutan, Indu Bhusan and Bidhu Bhusan, the defendants Nos. 1 to 3 in the mortgage suit. It is marked Exhibit 5 in this case. It authorises the Pleaders named therein to file any petition whatever or solenama or deed of settlement, and it is probably wide enough to cover the special terms mentioned in Clause 2 of the compromise. It further appears that on the 29th July a vakalatnama (Exhibit 4) had been executed on behalf of the same defendants Nos. 1 to 3 and Naba Chandra, the defendant No. 5, and was filed the same day. The latter had also previously filed a vakalatnama jointly with Kunja Behari on the 20th April 1912 (Exhibit 1). If, in fact, the existing vakalatnama executed by the parties in favour of their Pleaders were regarded as a sufficient compliance with Clause 2 (d) of the compromise, it remains to be explained why any of them should subsequently have filed others. Exhibit 4 authorises the Pleaders to file a compromise-deed in connection with the suit and '' to do any other act in connection with this suit on our behalf". As-. Burning that Exhibits 4 and 5 may be inter, preted as giving the authority required by Clause 2 (d), there was, neverthelese, no such express authority executed as required on behalf of either Kunja Behari or Charu Chandra, the other two defendants in the suit, after the compromise was entered into, nor was Exhibit 5 filed within the 3 weeks stipulated. It is true that a vakalatnama on behalf of Kunja Behari had been filed in the suit on the 20th April 1912, and a similar document was filed on behalf of Charu Chandra on the 26th June 1913. These are in the usual form authorising their Pleaders to act for them and to compromise the suit and can in no sense be regarded as express authority to consent to the terms of Clause 2 of the compromise agreement, which are matters outside the scope of the mortgage suit altogether. Counsel no doubt has a general authority to compromise a suit on behalf of the client engaging him, but this does not extend to collateral matters outside the scope of the action, see Nundo Lal Bose v Nistarini Dassi (2). The authority of a Pleader is certainly no greater, and it has been held that he has not even authority to compromise the matters in dispute in the suit itself unless specially empowered to do so. [See Musammat Sirdar Begum v. Izzut ool nissa (3) 2 N. W. P. H. C. E. 149.]. This appears to us obviously to have been the reason why Clause 2 of the compromise containad the stipulations as to filing the express authority therein mentioned and as there was an express condition that if such authority were not filed within 3 weeks the terms of Clause 2 should not come into operation, there was in our opinion no compliance with this provision, Even if the time be extended up to the date of the decree, viz, the 30th August there is not even then any express authority filed by Charu Chandra or Kunja Behari nor have they since complied with the stipulation. It was urged by the appellant as significant that the assignment executed by Abani Bhusan and others, the 10 annas share-holders, to Charu Chandra on the 27th August 1913 transferred to th6 purchaser the vendors'' claim which they had put forward by way of set off or counter claim against Heramba in Suit No. ;300 of 1911, which is one of those mentioned in the compromise. This, they contended, points to the conclusion that the parties to that instrument regarded the suit as still subsisting at that date. We do not think much importance can be attached to this. It is, however, much more significant that none of the parties made any attempt to enter satisfaction in Suit No. 300 of 1911 until long after the time stipulated, and no attempt was made by Naba Chandra and Kunja Behari to withdraw their suit for malicious attachment until the 10th July 1917, which was 10 months after the present suit was instituted. In our opinion there was no compliance with the provisions of Sub-clause (d) of Clause 2 and under Clause (e'', the earlier terms of that Clause never became operative.

The learned Subordinate Judge considered that the decree having once been passed in accordance with the terms of the compromise so far as it related to the suit and the compromise having been recorded there was an end of the matter, and a failure to comply with the special stipulations was of no consequence. It is not easy to follow him through this part of his argument. Assuming that the terms of Clause 2 had the same binding force as a decree, it is clear that they were subject to a condition and if the condition was not complied with, those terms cannot become operative. The learned Judge also found that the parties varied the terms of the agreement by excluding Sub-clauaes (i) and (e) of Clause 2. We are unable to find any evidence of such an agreement to vary the terms. Had such an agreement been come to before the decree was passed, it may safely be assumed that those clauses would have been deleted from the compromise and would not have been recorded.

It was next urged that Heramba by taking the money out of Court waived his right to object that the conditions imposed by Clause 2 had not been fulfilled. This argument has, in our opinion no louse. Clause 2 was in its operation independent of Clause 1. The first Clause was to operate in any event, the second only in the event of the express authority being filed. By the first Clause Charu Chandra Mittra had the option of paying the decretal amount into Court, in which event he would be entitled to an assignment of the decree in his favour. There was no compulsion upon him to do So but by so doing he gained certain advantages. He avoided a sale of the property in which he was interested and stepped into the shoes of the mortgage. In our opinion, the first Clause operated in any event, and was in no way dependent upon the second Clause becoming operative. Heramba, therefore, by taking out the money cannot be taken to have waived his right to the performance of the conditions attached to the second clause.

It remains to consider whether the attachment was properly effected and if so, what the effect of such attachment was as against the claims of the plaintiffs. The Subordinate Judge found that it had not been proved that the writ of attachment had been served on the colliery. He arrived at this conclusion by refusing to accept the evidence of Ashutosh Munshi, a servant of the appellant who accompanied the serving peon when the service was alleged to have taken place. The peon himself at the date of the trial was away on leave and although a summons was issued for his attendance as a witness, he could not be found and hence he was not called at the trial. The peon''s return of the service of process of attachment with his affidavit attached testifying to the service and signed by him was put in evidence subject to objection. His signature was proved by the Naib Nazir of the Court of the District Judge of Purulia. A certified copy of the writ of attachment, with an endorsement by the Nazir that it appeared from the peon''s return that it had been duly served, was also put in and proved. A copy of the plaint in Suit No. 638 of 1911 brought by Naba Chandra and Kunja Behari against the appellant claiming damage B for wrongful attachment was also put in evidence and not objected to. Paragraph 9 of that of the appellant appeared at the colliery on the 14th June 1911 with peons of the Purulia Civil Court and others and caused the attachment to be made, and that it was conducted by the peons by beat of drum and that notices were passed at the colliery and also delivered to the agent there. The writ of attachment was one of the notices therein referred to. It seems to us that evidence of the service of the writ of attachment is overwhelming. The reasons given by the learned Judge for not accepting the evidence of the witness Ashutosh Munshi, whose name appears as one of the identifiers in the peon''s report, do not commend themselves to us and we accept his evidence as that of a witness of truth. Apart from his evidence there is also the admission in the plaint in Suit No. 638 of 1911 just referred to. This is an admission by two of the plaintiffs'' predecessors-in-title to the property, the subject-matter of the suit, made at a time when they had an interest in that property. u/s 18 of the Evidence Act such statements are admissions from which an inference adverse be the plaintiffs in the suit may be drawn, This document corroborates absolutely the other evidence in the case. In our opinion, it makes no difference that the attachment was withdrawn by the order of the High Court of Calcutta, so far as the shares of the plaintiffs in that suit are concerned. It is an admission that their share was attached. That share as well as the rest is the subject-matter of the present suit and there was only one attachment of the whole property. We further think* that the peon''s return, being an official record made by a public servant in the discharge of his official duty, was clearly admissible in evidence, the peon''s signature having been duly proved and the document produced from the proper custody. The form of return is that prescribed by the General Rules and Circular Orders, Vol. II, Civil, Appendix B, No. 5, and the affidavit is made under the provisions of Order V, rule 18, read with Order XLVIII, rule 2, of the Civil Procedure Code. There can be no reasonable doubt, in our opinion, that the attachment was duly served. The evidence of Bam Prasad Mittra, who was in Calcutta at the time an 1 swears that he heard nothing about it, may or may "not be true. We rather suspect the latter but in any case it is not of such a nature as to have any weight against the positive evidence of Ashutosh Munshi, corroborated as it is by the documentary evidence produced.

It was next urged on behalf of the respondents that the process served was not an attachment at all, but merely a personal order directing the defendants in that suit not to part with their shares in the property. The terms of that document have already been quoted in an earlier part of this judgment. The respondents in support of this contention relied upon the case of Mahendra Narain Saha v. Gurudas Bairagi (4) 33 Ind. , 23 0, L. J. 392. That was a case where an order was made by the Subordinate Judge upon the defendants to show cause why an attachment of their property should not issue before judgment, and pending the hearing of the Rule they were directed not to part with their property. The form of order was not that prescribed by Order XXXVIII, rule 5, of the CPC and no order attaching the property was in fact made. When the defendants appeared to show cause, the Court was satisfied that no reason for attaching the property had been made out and dismissed the application. From this there was an appeal to the High Court. A preliminary point was taken that no appeal lay from such an order. The question was whether the last order dismissing the application was one made under Order XXXVIII, rule 6, If so, an appeal lay but not otherwise. The High Court decided that it was not an order made under rule 6. In fact no attachment had been ordered under rule 5 and the procedure laid down in rule 6 had not come into operation. What was done was in effect a dismissal of an application under rule 5 from which there was no appeal, and the Court dismissed the appeal on the preliminary objection. In the case now under consideration an order under rule 5 was dearly passed on the 27th March 1911 (Exhibit H) calling upon the defendants to show cause why security should not be given and ordering attachment to issue until such cause should be shown. The writ, which was eventually served (Exhibit E), recites that an order of attachment had been made and prohibits the defendants from parting with the property until further order of the Court. The further order of the Court on the 19th May 1911 ordered the attachment to be removed, so far as the interest of the three defendants who gave an undertaking was concerned, and to continue so far as the interest of the other defendants was concerned until the final disposal of the suit. The latter order would appear to have been properly made under rule 6 or Order XXXVIII and kept the attachment in so far as it was not withdrawn. In the case relied upon no order of attachment was ever made and it affords so authority for the respondents'' present contention.

It was further contended, however, that the attachment ceased when the decree was passed, the suit being then finally disposed of within the terms of the Order. It would be a strange result if the benefit of this procedure should cease to operate at the moment when the plaintiff obtained a decree in his favour so as to deprive him of the fruits of victory, and it seems dear from the terms of rules 9 and 11 of Order XXXVIII that such was not the intention of the Legislature. The former relates to the circumstances under which the Court shall order the attachment to be withdrawn, viz., when security is provided or the suit dismissed. The latter provides that where the property is under attachment by virtue of the provisions of that Order and decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution to apply for re attachment of the property. In our opinion the attachment continued in full force after the decree was passed in favour of the plaintiff in Suit No. 300 1911. See can Singh v Jangi Lal (5) 26 C. 531 : 13 Ind. Dec. 941.

20 It was next contended that the writ of attachment was had because it was not in the form presecribed in Appendix F, No. 5, of the Civil Procedure Code. The form there set cut is a composite form addressed to the bailiff commanding him to call upon the defendants to give security or show cause and to attach and keep in safe custody the property until further order. These forms are subject to variation (See Order XLVIII, rule 3). Form No. 5 of Appendix F would appear to be adapted to the case of moveable property as the bailiff is directed to keep the property under safe and secure custody. There is no special form adapted to the case of Immovable property, but in Appendix E which is applicable to attachments in execution, a special form No. 24 is provided to meet the case of Immovable property and is more like the form employed in the present case. It appears from the affidavit of Nilmony Boy and from the evidence of that witness given at the trial that the order of the 27th March 1911 calling upon the defendants in Suit No. 300 of 1911 to show cause was duly served and the defendants in fact appeared to show cause before the writ of attachment was served. There was, therefore, no necessity to serve again a similar notice with the writ of attachment, and the form prescribed in Appendix F was not in the circumstances applicable. Moreover, it must be remembered that that suit was brought in the Calcutta High Court in the exercise of its original jurisdiction and the forms prescribed under its own rules of procedure under the powers saved by Section 129 of the CPC differ in many respects from those in the appendices to the Code. We think that until the contrary is shown, we must presume that the writ which bears the seal of the Calcutta High Court was a valid writ authorised by its own procedure

. 22. A further point was taken on behalf of the respondents that, as by the compromise the appellant agreed to transfer his rights under the mortgage decree to Charu Chandra on payment of the decretal amount, he surrendered his right of Hale under the attachment to the latter. Tae attachment was no doubt subject to existing liens including Haramba''s own rights as mortgage, but subject to this the equity of redemption could be attached and the transfer of the mortgage, decree, although it may have given the transferee a prior claim on the proceeds to the extent of the amount of the mortgagee decree, can-not affact the right of sale under the attachment. What the respective rights of the parties may be once the property is sold we are not concerned with in the present suit, which merely prays for a declaration that the property belongs to the plaintiffs free of all incambrances and that the " appellant is not entitled to sell it in execution of his decree in Suit No. 300 of 1911.

The next point urged by the respondents was that by a letter of the 10th September 1910, that is, before the attachment was effected, the defendants Nos. 4to 7 had already entered into a contract with Charu Chandra for the sale to him of their share in the colliery and that of the consideration money Its. 51 was paid on the 10th October 19i0 and Rs, 200 on the 18th May 1911, although the assignment was not actually executed until the 27th August lyl3, the attachment having taken place on the 14th June 1911. It is contended that the respondents had on the latter date an interest in the property which could be enforced against the owners and that they were entitled to priority over the rights of the attaching creditor. It is clear by the terms of Section 54 of the Transfer of Property Act that a contract for the sale of Immovable property creates no interest in or charge upon the property in this country. It was pointed out, however, that no interest in or charge on the property is created even by an attachment and that charu Chandra could have enforced a suit for specific performance of the contract contained in the letter of the 10th September 1910. He, therefore, had a right existing prior to the attachment within the meaning of Order XXXVIII, rule 10. The case of Madan Mohan v. Rebati Mohan (6) was relied upon in support of this contention. There is no doubt much force in this argument, but there is no evidence to show what the terms of the letter of the 10th September 1910 were or how far it gave any right to charu Chandra which could have been enforced by a suit for specific performance. The point was not taken before the trial Judge and had it been taken strict proof of the contract. if any, contained in the letter of the lOth September would have been required. This letter was not produced and it is impossible to say how far it gave any right to charu Chandra to insist upon an assignment of the property. A mere reference to such a letter in the de6d of assignment of the 27th August 1913 is no evidence against the appellant, nor does the deed of assignment itself show what its terms were. No reason is given for its non-production and its contents must remain a matter of pure surmise. We cannot assume from evidence of this nature, especially as the question was not raised or discussed in the trial Court, that Charu Chandra acquired any enforceable rights under this latter at all. In these circumstances we are bound to hold that the attachment was not affected in any way by this matter.

A further question was raised on behalf of the appellant, namely that Section 47 of the CPC was a bar to the present suit. This point was not taken in the written statement. The learned Judge considered that as Order Vill, rule 2, had not been complied with, the appellant was not entitled to raise the point. Ha further considered that as there had been no valid attachment of the property at all in Suit No. 300 of 1911, the plaintiffs in the present suit were not the representatives in interest of the judgment-debtors in that suit and that the Section did not apply. This part of his judgment would appear to be open to several objections. The question is purely one of law and the facts upon which it has been raised are on the record. It is, therefore, open to the plaintiff to raise it at any stage of the suit. We do not think, however, that Section 47 is a bar to the present suit. The suit was brought before the decree was put in execution and there were no proceedings then pending in which an application u/s 47 could be made. The facts relied upon by the plaintiffs in their suit affect not the execution of the decree so much as the decree itself, which was passed on the 22nd November 1915 and which it is claimed should not have been passed at all in the face of the compromise of the 29th July 913. Moreover, as the attachment of the shares of the defendants No. 2, 3 and 4 was set aside by the order of the l9"h March 19.1, that property is not now the subject of any attachment and the plaintiffs are not the representatives of those judgment-debtors by reason of having required their share in the colliery which no longer forms a part of the attached property. Had the appellant admitted this possibly, there would have been no necessity to claim a declaration so far as this portion of the property is concern I, but no such admission was made and it was contended that the whole property had been attached. In the result we think that the decree of the Subordinate Judge should be varied and that a deore3 should be entered in lieu thereof declaring that the plaintiffs are entitled to the 8***annas share in the Ranidih Colliery, which they purchsased from the defendants Nos. 2 to 4, free from the attachment. The appellant has succeeded in part and is entitled to proportionate costs of this appeal.

The respondents will recover their proportionate part of costs of the lower Court.