JUDGMENT
Mullick, J.
1. The plaintiff got a decree for money against one Bharath Lal and took out execution against him and after his death against his minor son, Japsu Lal. In that execution Japsu Lal was represented by Balbir Prasad as guardian ad litem. After Japsu Lal’s death execution was taken out against a lady named Musammat Lalita and Balbir Prasad himself. In this execution proceeding Balbir Prasad came to a compromise with the decree-holder, admitting that he was liable for the decree and promising to discharge the balance if the decree-holder would take a cash payment of Rs. 200. The decree-holder agreed to take the sum of Rs. 200 and withdrew the execution. Balbir Prasad failed to carry out his promise to satisfy the decree as to the balance and the decree-holder brought the execution case, out of which the present appeal arises. In this execution case Balbir Prasad repudiated the previous compromise and set up the objection that he was not the legal representative of the judgment-debtor Bharath and that the execution case could not be maintained against him. Both the Courts below have decided against the judgment-debtor and hence this second appeal.
2. Now the only point is whether Balbir Prasad is estopped from raising the defence which he now raises. It is quite clear that the decree holder has changed his position because when Balbir Prasad paid the sum of Rs. 200 and promised to pay the balance the decree-holder withdrew the execution, although he might have, if he had not been deceived by the judgment-debtor, asked the Court to proceed to adjudicate upon his right to execute the decree against Balbir Prasad as the legal representative of Bharath. Thus there was a change of position, and not only was there a change of position but prejudice has been caused to the decree-holder by the conduct of Balbir Prasad. In my opinion the principle of estoppel clearly applies and the case cited by the lower Appellate Court [Coventry v. Tulshi Persad Narayan Singh 31 C. 822 : 8 C.W.N. 672] is clearly in point. An attempt has been made before us to rely upon Ganga Sahai v. Hira Singh 2 A. 809 : 1 Ind. Dec. (N.S.) 1102 (F.B.), but in regard to that case the opinion of the Court to the effect that in order to justify an estoppel it must be shown that the person who made the representation acted with a fraudulent intention was long ago overruled by the High Court of Calcutta. It is not necessary, according to the law as at present accepted, that there should be any fraudulent intention established in connection with the representation which is the subject of the estoppel. The judgment-debtor’s appeal is without any merit and is dismissed with costs.
Thornhill, J.
3. I agree.