SOUDAMINI DASSI Vs. BAHARI LAL BISWAS

JUDGEMENT

(1.) This appeal arises out of proceedings in execution of a decree.

(2.) It appears that the respondents brought a suit for a declaration that certain property attached by the appellant in execution of a money decree against one Troilokbya belonged to them by right of purchase from the latter before attachment, and was not liable to attachment and tale in execution of the decree, and also prayed for a democracy injunction staying the pale. The suit was amicably fettled and a petition of compromise was filed in Court on the Sid January 1918. Subsequently, difference arose between the particle, and the Court, slier faking evidence in the matter, settled the terms of the compromise which were to the effect that Rs. 392 11 was due from Tricky to the appellant, that the respondents (the plaintiffs) would execute a mortgage-bond for Rs. 339211 cut of which Rs. 50 was to be paid at the time of revision of the bond, the balance being payable under the bond in installments of Rs. 5 per month, that on default of payment of any his the whole amount would be payable, and that the mortgee-bond was to be executed within ten days. A decree embedding the above terms was passed on the 22nd February 1918. The respondents, however, did not execute the bond within the time free field in the decree, and the appellant the reject applied on the 4th March, 1918, for execution of the mortgage-bond in execution of the decree. 2. The respondents objected to the application for execution en the ground that the direction in the compromise decree for execution of the mortgage-bond went beyond the Subject mutter of the suit in which the decree was paced, opted plat the appellant could not get the life pruned free of the decree, but, must bring e, separate for the purpose be Court of fierce instance disallowed 11 objection. On appeal, tie learned District Judge for and the rule of the Court of first instance and dismissed tie application for execution, on the ground that execution of the mortgage-bond was a matter extraneous to the suit and must be enforced by a separate suit.

(3.) The question far consideration, therefore, is, whether the execution of the mortgage-bond provided for in the compromise decree was a matter which related to the Subject-matter of the suit. It is contended on behalf of the appellant that the execution of the mortgage bond was the consideration for the compromise and, therefore, should be held to be the subject matter of the suit, and reference is made to certain cases. But the mere foot that it formed the consideration of the compromise would not necessarily make it the subject matter of the suit. In many eases of compromise, the parties settle their differences rising to masters which have notice to do with the subject-matter of the with, and although they may form consideration for the compromise, it cannot be Raid that sub matters relate to the Suit. In such cases, although all the terms are to be recorded, the decree must be restricted to matters relating only to the suit. In the resent case of Bemanta Eumari Debi v. Midnopore Zeminiari. Limited 53 Ind. Cas. 524 : 24 C.W.N. 177 : 37 M.L.J. 525 : 17 A.L.J. 1017 : (1920) M.W.N. 66 : 27 M..L.T. 42 : 11 L.W. 301 : 46 I.A. 240 : 31 C.L.J. 298 : 22 Bom. L.R. 488 : 47 C. 485 (P.C.) the Judicial Committee, referring to the provisions of Section 375 of Act XIV of 1882 Order XII, rule, of the present Code observed as follows: The terms of this section need careful scrutiny. In the first place, it is plain that the agreement or compromise, in whole and not in part, is to be recorded, and the decree is then to COL fine its operation to so much of the subject matter of the suit as is dealt with by the agreement. Their Lordships are not aware of the execution system by which documents are recorded in the Courts in India, but a perfectly proper and effectual method of carrying out the terms of this section would be for the decree to recite the whole of the agreement and then to conclude with as order relative to that part that was the subject of the suit, or it could introduce the agreement in a schedule to the decree; but in either cane, although the operative part of the would be properly confined to the actual Subject matter of the then the decree taken as whole would include the agreement. This in fact, in what the decree did in the present case. It maybe that as a decree it was incapable of biog executed outside the lands of the suit, but that does not prevent it being received in evidence of is contents."