1. This is an appeal by the judgment-debtors against anorder made in proceedings in execution of a decree. The decree-holder appliedfor execution on the 1st June 1912. On behalf of the judgment-debtors objectionwas taken on the 27th June to the effect that the decree could not be executedinasmuch as it had been adjusted : their case was that, the alleged adjustmenthad taken place on the 11th February 1912 and that thereunder the decree-holderhad agreed to accept the judgment-debt in certain specified installments. It isplain that as the adjustment had not been recorded, the Court executing thedecree could not recognise it. Or. 21, r. 2, sub-rule 3, provides that anadjustment which has not been certified or recorded as prescribed in sub-rules1 and 2 shall not be recognised by any Court executing the decree. The onlyquestion for consideration consequently is whether at the time the objectionwas taken by the judgment-debtors on the 27th June 1912, it was still open tothem to apply to the Court to issue a notice to the decree-holder to show causewhy the adjustment should not be recorded as certified. Art. 174 of the SecondSchedule to the Indian Limitation Act, 1908, provides that an application inthis behalf must be presented within 90 days of the adjustment. The adjustmenthad been made, if the allegation of the judgment-debtors is true, on the 11thFebruary 1912. Consequently the application of the 27th June 1912 would be ofno avail, even if it were treated as an application for the issue of notice tothe decree-holder. But it has been argued that an application was made on the11th March 1912, which was in essence an application to the Court to issue anotice to the decree-holder why the adjustment should not be recorded ascertified. This application is of no assistance to the judgment-debtors. itmerely 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 kindnessto the judgment-debtors agreed to have execution struck off and consented toreceive the balance by giving some further time. The petition further statesthat the execution might be struck off with permission to the decree-holder tomake a fresh application for execution. This application does not recite theterms of the alleged adjustment and cannot be deemed an application of thedescription contemplated by sub-rule 2 of r. 2.

2. It has been argued in the next place that the applicationof the 11th March 1912 embodies an acknowledgment of the right of thejudgment-debtors to apply in accordance with sub-rule 2 of r. 2 andconsequently saves that right from the bar of limitation under sec. 19 of theIndian Limitation Act. This contention is obviously unfounded. The applicationdoes not, by implication or otherwise, acknowledge the right of thejudgment-debtors to apply to the Court to have the adjustment recorded ascertified.

3. It has finally been argued that as the decree-holder has,subsequent to the alleged adjustment, received payments in accordancetherewith, he is estopped, and the Court is bound to determine whether therehas or has not been an adjustment within the meaning of sub-rule 1. Thiscontention is clearly opposed to the provisions of sub-rule 3. The argument insubstance is that the doctrine of estoppel as between the parties litigant maynullify a legislative provision and may compel the Court to act in contraventionof the clear provisions of the statute. But even if we assume for the purposesof argument -- and for that purpose alone -- that the doctrine of estoppelapplies as between the decree-holder and the judgment-debtors, it does notfollow that the Court can recognise an adjustment not duly certified, incontravention of sub-rule 3 which states explicitly that an adjustment notcertified or recorded shall not be recognised by any Court executing thedecree. This is preeminently a case, where the principle applies that thedoctrine of estoppel cannon be invoked to nullify an express statutoryprovision [Barrows case (1)]. The view we take is in accord with that adoptedby Mr. Justice Chandavarkar in the case of Trimbuk v. Hari Laxman (2) and wemay 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 thejudgment-debtors fail. The order of the Court below is consequently affirmedand this appeal dismissed with costs. We assess the hearing fee in this Courtat two gold mohurs.

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Jogendra Nath Sarkar and Ors. vs. Probhat Nath Chatterjee (21.08.1913 - CALHC)