LAKSHMI Vs. MARU DEVI

JUDGEMENT

(1.) This is an appeal against the order of the District Judge of South Canara, dated the 29th January 1910, in an application for execution of the decree in Original Suit No. 43 of 1906. The decree was the result of a compromise between the parties. The material portion of it was in these terms: the Court doth order and decree "that plaintiffs do pay the assessment on the entire property as per plaint karar, dated 16th November 1905, that first defendant shall enjoy land., yielding 126 muras of rice, and house, out of the land referred to in the karar, that first defendant shall not alienate the said land of 126 muras of rice, that if alienated, the alienation shall be null and void, that after the death of the first defendant the said land and house shall be enjoyed by the second defendant paying thereabout 63 muras of rice to plaintiff annually by the end of June of each year through Court, etc." In 1909 the plaintiff applied for execution and asked for an order "directing that from out of the lands mentioned in the decree, land yielding 126 muras of rice which is already in the possession of the first defendant and which is to be retained with her as per compromise decree, be caused to be separated towards the said first defendant and that the remaining properties be given in possession to the plaintiffs by a Commissioner."

(2.) The first defendant objected on the ground that the decree was declaratory in its terms and that therefore no execution could issue. The District Judge held that "the decree can be executed by setting aside lands that yield 126 muras of rice income," and directed that this should be done, and ordered the appointment of a Commissioner to prepare lists of the lands. The first defendant has presented the appeal to this Court on the ground that the Judge was wrong in construing the decree as one that was not purely declaratory.

(3.) On the merits there can be no doubt that the order of the Judge cannot be upheld. The decree did not direct possession of any lands to be given to the plaintiffs but merely declared the right of the first defendant to remain in possession of land yielding 126 muras of rice of which she already had possession.