M.M. Dutta, J.@mdashThis Rule is at the instance of the plaintiff decree holder and it is drected against order No. 31 dated May 30, 1978 of the
Munsif, 1st Court Chinsurah. By the said order, the learned Munsif allowed the application of the judgment debtor opposite party u/s 47 of the
Code of Civil Procedure. The plaintiff got a decree for ejectment against the opposite parly. Thereafter the plaintiff put the said decree into
execution. The opposite party filed an application u/s 47 of the CPC inter alia alleging that after the passing of the decree there was an agreement
between the plaintiff and herself. Under the said agreement, the opposite party would pay a sum of Rs. 400/- to the plaintiff and would go on
paying a monthly sum of Rs. 25/- on account of rent of the disputed premises. Fur-ther, it was agreed that the opposite party would not prefer any
appeal against the decree. The Plaintiff did not file any objection to the said application u/s 47, but he opposed the application at the hearing, the
learned Munsif believed the evidence of the witnesses examined on behalf of the opposite party and came to the finding that there was such an
agreement between the petitioner and opposite party. Is that view of the matter, the learned Munsif allowed the application u/s 47. Hence this,
Rule.
2. Mr. Robin Mitra, Learned Advocate appearing on behalf of the petitioner submits that the learned Munsif has exercised a jurisdiction not veted
in him by law by accepting an uncertified adjustment of the decree. Further he submits that the Learned Munsif has made certain presumption u/s
114 of the Evidence Act which he could not do as no such presumption arose. The principal question that was to be decided by the learned
Munsif was whether there was an agreement between the petitioner and the opposite party about the creation of a new tenancy. There is a
distinction between adjustment of a decree either whole or in part and subsequent agreement creating a new right or liability between the parties. In
the instant case, a new right has been created by the alleged agreement, viz, that the opposite party was granted a fresh tenancy in respect of the
disputed premises at an enhanced monthly rent of Rs. 25/-. Further she was to pay a sum of Rs. 400/- to the decree-holder petitioner. Her
allegation was that she had paid the said sum to the petitioner, but he did not grant any receipt. That allegation has been believed by the learned
Munsif. Indeed two witnesses were examined by the opposite party in support of her case that she had paid a sum of Us. 400/-. The learned
Munsif has believed the evidence of these two witnesses. In the circumstances, I do not think that I shall be justified in interfering with the finding of
the learned Munsif which is a finding of fact. The provision of order 21 Rule 2 of the CPC has no application in the circumstances of the case.
For ''the reasons aforesaid, this Rule is discharged, but there will be no order for costs.
