MAHARANI DEVI Vs. RAM ADHAR PANDEY

JUDGEMENT

(1.) This is a decree-holder's appeal against the decision of the learned Civil Judge, Gorakhpur allowing the judgment debtor's objection and dismissing the application for execution. The facts of the case as revealed by the judgments of the courts below appear to be these. The appellant Smt. Maharani Devi filed a suit against the two defendants respondents Rama Adhar Pandey and Kedar Nath Pandey for a declaration that she was entitled, as the widow of their deceaed brother, to the rights of a Bhumidhar to the extent of one third in certain plots of land which were jointly held by her late husband and the defendants.

(2.) The suit was compromised in the following terms : "The plaintiff surrendered her rights in the plots in dispute in consideration of which the defendants agreed to pay her a sum of Rs. 30/-per month, subject to the condition that the sum would be reduced by Rs. 10/- per month on the marriage of each of her two daughters". The compromise also provided that in case of the defendant's failure to pay, the amount should be realised by attachment of the plots which were the subject matter of the suit. The court passed a decree in terms of the compromise on a joint application by the parties.

(3.) It appears that subsequently the defendants went back on the compromise and refused to pay. Smt. Maharani Devi was compelled to evacuate the decree. The defendants filed an objection that the decree was not capable of execution as the court had exceeded its power in passing it. The trial court dismissed this objection. On appeal the learned Civil Judge took the view that in passing a decree for monthly sum of Rs. 30/- the court travelled beyond its powers prescribed by Order 23, Rule 3 C. P. C. which permits a court to pass a decree in accordance with the terms of the compromise "so far as it relates to the suit." The learned Judge thought that in a suit for declaration and possession of the land a decree for payment of a monthly sum is outside the scope of the suit altogether as it cannot be said to "relate to the suit." Treating the decree as a nullity it dismissed the application for execution. Aggrieved by this decision Smt. Maharani Devi has come to this Court in Second Appeal.