(1.) This is a decree-holder's appeal from the decision of the learned Subor dinate Judge of Arrah, dated 8-5-1948, partly allowing objections under S. 47, C. P. C. raised on behalf of the resp Judgment-debtor.
(2.) It appears that the applt instituted a suit for partition of properties said to have been joint family properties against a number of defts, including deft 5, Bansidhar Sahu, the resp in this case, who happens to be the nephew of her husband. The suit related to many items of immovable property as also of movables, including ornaments & pieces Of furniture & clothing. The matter came up to this Ct on . appeal from an order passed by the Ct below refusing to record a certain compromise. That case was Misc App No. 454 of 19.45. A D. B. of this Ct succeeded in getting the applt, who was then also the apnlt & deft 5 to agree to certain terms of compromise which are as follows:
(3.) The matter did not rest there. The two parties aforesaid appeared before the Ct where the suit was pending, & a decree was passed in the suit itself, recording the terms of the com promise aforesaid. As the judgment-debtor, deft 5, did not pay the amounts covered by the terms of the compromise, the decree-holder was com pelled to take out execution, which was num bered as Exen. Case No. 4 of 1948. She claimed a total sum of Rs. 11,079/6/- being made up of the cash amounts mentioned in the terms of the compromise as also interest accrued due thereon plus arrears of maintenance for 34 months at the rate of Rs. 125/- per mensem with interest. The judgment-debtor filed an objection petn under S. 47 of the Code, contending, inter alia, that the decree-holder was not entitled to realise the several sums constituting her total claim as laid in the execution petn, without having recourse to a separate suit, & that the decree passed in the partition suit was "quite illegal & invalid & inexecutable". The judg ment-debtor further contended in his objection that the decree passed was against law, as laid down in O. 23 R. 3, C. P. C. & as such it was unenforceable. The question was also raised that the decree-holder was not entitled to any inte rest either on the sums of 1,400 or 5,000 or on the amount of maintenance.