GHULAM NABI KHAN Vs. ABDUL GANI KHAN

JUDGEMENT

(1.) One Abdul Gani Khan (hereinafter called the decree holder) obtained a money decree against Ghulam Nabi Khan (hereinafter called 'the judgment-debtor) from the court of the Judge Small Causes, Srinagar. The Decretal amounted including the cost amounted to Rs. 1705/- The decree holder filed an application for the execuiion of the decree. During the pendency of the execution proceedings, the parties entered into compromise by which the decreeholder agreed to grant rebate and accept the sum of Rs. 1157/-only and, that too, in two instalments of Rs 200/- and Rs. 951 f- The agreement was subject to the condition that the judgment debtor shall pay the first instalment on 20.10.74 and the other within one Year thereafter and. that in the event of default the decree-holder shall be entitled to recover the decretal amount in full as provided in the decree. In terms of the compromise, the judgment debtor paid the first instalment of Rs. 200/- on the due date. He did not pay the second instalment in time and paid the same much later. The decree holder filed an execution application for the execution of the decree in terms of the compromise. The execution court of the Judge Small Causes, allowed the execution on appeal the Addl. District Judge. Srinagar, up-held the order.

(2.) The argument of the learned counsel for the judgment debtor is that the courts below have erroneously ordered the execution. His contention is two fold. Firstly, that the decree was not executable. Secondly, that the execution application was not in accordance with law. Dealing with the first point, the learned counsel for the judgment debtor urged that the executing court has no power to alter or vary the decree under execution and to substitute allow decree for it. Even the consent of the parties cannot confer such jurisdiction on the executing court to support of his contention he relied upon a decision of the Division Bench of this court in Firm Nsadhe Lal Durga Dass Versus Mohamad Din (30 PLR j&K. 13). In reply learned counsel for the decree holder contended that the compromise was not intended to supersede the decree. It merely provided the mode of executing the decree. The decree - holder was entitled to execute the decree on default in terms of the compromise. In support of his argument he relied upon a decision of the Punjab High Court in M/s Sehgal Bros Versus Bharat Bank Ltd, 1961 AIR(P&H) 439.

(3.) It is true that a compromise providing for a new decree in place of a decree under execution is not executable, but the same is not true about a compromise which regulates a mode of payment of the decree under execution and any such compromise is execurable To borrow the language of the Privy Council in Oudh Commercial Bank Fyzadad Ltd Versus Bind Basi Kner, 1939 AIR(PC) 80 :