RAM SEWAK Vs. RAM SAHAI

JUDGEMENT

(1.) This is a decree-holder's appeal arising out of execution proceedings. A decree for demolition of certain constructions was obtained by the appellant-decree-holder against the respondent. Thereafter, the judgment-debtor made an application under Order 21, Rule 2, Civil P. C. praying that an adjustment of the decree be recorded. Under the alleged adjustment, the decree-holder was alleged to have given up his right to get the decree executed for demolition of the constructions in lieu of receipt of a sum of RS. 1,000. The decree holder replied that no such adjustment had been arrived at. The executing Court came to the conclusion that the adjustment, as alleged by the judgment debtor, had in fact been made and recorded the adjustment accordingly. Against this order, the decree holder went up in appeal to the lower Appellate Court. While the appeal was pending the parties came to terms. A statement was made in Court on 18.11-1945 to the effect that the decree-holder would be deemed to be the owner of one-fourth of the house in dispute, including the constructions and that the judgment-debtor would not claim any compensation for the same from the decree holder; that the decree wilt be deemed to be fully satisfied and that the parties will bear their own costs. By way of an addendum, it was stated fay the parties that in order to effect a partition of the share of the decree-holder one Prakash Shankar, Vakil, will be deputed to make the partition, that the parties will pay Rs. 100 as his fees, that if any party had any objections to the commissioner's report, the decision of the Court upon those objections will be acceptable to and binding upon the parties and none of the parties will be entitled to appeal against that decision. The addendum clearly shows that the parties intended that the partition was to be effected in execution proceedings and the full satisfaction of the decree was to take effect after the partition had been effected.

(2.) The case was not, however, decided on that date and soon after the learned Judge before whom the adjustment was made, died. The case was ultimately taken up by his successor three years later. During this interval, the judgment-debtor filed an objection alleging that the decree-holder's share was to be three-sixteenth and not one-fourth. Later on, when the case was ultimately taken up on 28-10-1948, the judgment debtor withdrew his objection and both the parties prayed that the original adjustment as recorded on 18-11-1945, may be considered to be good and valid and that the appeal may be decided accordingly. The learned Judge stated that the compromise between the parties amounted to an adjustment of the decree superseding the previous adjustment as alleged by the judgment-debtor. Then the learned Judge considered the question whether the executing Court could execute the decree in accordance with the new adjustment and observed that he would not decide the point and would leave it to be decided by the executing Court itself, and that it would be open to the decree-holder to make a proper application for execution which would be considered by the executing Court. Then the learned Judge passed the following order: "In view of the above, the appeal becomes nugatory and is hereby dismissed. The parties will bear their own costs of both the Courts." It is against this order that the decree-holder has come up in appeal to this Court. His point is that the lower Appellate Court should not have dismissed the appeal, but that it should have passed a decree in terms of the compromise between the parties. On behalf of the judgment-debtor respondent a preliminary objection has been raised to the effect that no appeal lies, because the matter having been compromised, the decree was a consent decree, from which no appeal lies. Further, according to him a compromise can be given effect to, if at all, under the provisions of Order 23, Rule 3, Civil P. C. only and under no other provision of law; but as this provision in the Code applies to suits and does not apply to execution proceedings, (vide Rule 4 of that Order) the compromise in question could not be recorded at all.

(3.) The objection that no appeal lies to this Court because there was a consent decree in the case, has no force, because the complaint of the appellant is precisely this that the Court below failed to pass a decree in accordance with the terms of the compromise between the parties. The parties had prayed that the appeal be decided in accordance with the terms of the compromise but instead of acceding to the prayer of the parties the Court dismissed the appeal. It cannot, therefore, be said that the order of the Court below amounted to a consent decree.