RIASAT Vs. KAMTA PRASAD

JUDGEMENT

(1.) THIS appeal has been heard ex -parte as learned counsel for the respondent states that he has had no instructions from his client. Kamta Prasad, respondent, had made a mortgage of a six pies share in agricultural land in favour of the appellant on the 27th April, 1929 for Rs. 750/ -. On the 11th April, 1946, Kamta Prasad filed a suit under Section 12 Agriculturists' Relief Act for redemption of the mortgaged property. This resulted in a compromise and the parties agreed that on payment of Rs. 700/ -, the mortgagor would be put back in possession of the plots mentioned in the deed of compromise. A decree was then passed in terms of the compromise. This decree was subsequently put into execution. The appellant raised an objection in execution proceedings to the effect that the mortgage was in respect of a six pies share and although the plots had been mentioned in the deed of compromise, it was not open to the decree -holder to obtain possession of the plots. This objection found favour with the learned Munsif. Kamta Prasad then went in appeal and the learned Civil Judge who heard the appeal reversed the order of the Munsif and dismissed the objection of the appellant. The appellant has now come up in second appeal.

(2.) THE order of the learned Munsif allowing the objection of the appellant was clearly a wrong order. It is not open to an execution Court to go behind the decree. It was clearly mentioned in the decree that the decree -holder was to get possession over the plots mentioned in the deed of compromise after payment of Rs. 700. It appears to me that the six pies share mortgaged was comprised of certain plots which were made over to the mortgagee at the time when the mortgage was made and which the mortgagee undertook to give back to the mortgagor on payment of the money under the terms of the compromise. Even a technical objection that the mortgage was in respect of a six pies share and a decree should not have been passed in respect of the plots had also no merit. Apart from this, as remarked above, the learned Munsif should not have gone behind the decree. The ruling quoted by the learned Munsif in his judgment, Satnarain v. Chandra Mohan : A.I.R. 1940 (Oudh) 27has no application to the facts of this case. In the reported case the whole of the compromise arrived at between the parties was not incorporated in the decree and the decree was limited to the subject -matter of the suit. In the present case the compromise has been made a part of the decree and will have to be read as a part of the decree.