MUHAMMAD ISMAIL Vs. BIBI SHAIMA

JUDGEMENT

(1.) This is an appeal from a decision of the Subordinate Judge of Saran in an execution case rejecting an application for execution on a preliminary objection by the judgment-debtor upon the ground that whereas the decree for execution was by compromise and whereas one of the terms of the compromise which was decreed was in the opinion of the Subordinate Judge outside the terms of the suit he could not enforce that term by execution. I may mention that this is the fourth of a series of execution cases which have been taken out with the object of enforcing other terms of the decree. The objection that the decree travels "outside the scope of the suit," although that is not the correct phrase to employ, is in any case not one for the executing Court to consider. If the Court had no power to pass the decree the matter should have been raised either by way of review or by way of appeal, but the executing Court could not go behind it.

(2.) There have been some reported cases which would seem to indicate that from time to time in certain High Courts it has been suggested that there were difficulties in the way of the executing Court when asked to execute a term which is, as they say, "outside the scope of the suit." We have not, however been shown any case in which the matter has been directly and properly in issue and in which any direct decision has been given and I find in the well-known text book by Mr. Mulla upon the Civil P. C. some observations which might lead one to believe that the matter was still in doubt by reason of differences of opinion; but having looked at the authorities referred to in that book and having had the assistance of the learned advocate on behalf of the respondents who has presented such authorities as he was able to find, I am unable to find any authority which would lead one to suppose that the executing Court had such a power of deciding upon the validity of the decree passed by the Court in the suit.

(3.) The first case of which I will make mention is that of Jagabandu Saha V/s. Hari Mohan Roy (1921) 62 IC 653. It is true that in that case the appeal arose out of an order in execution proceedings. The question was to some extent canvassed in that case and the learned Judge who delivered the decision said, in referring to the case of Jasimuddin Biswas V/s. Bhuban Jelini (1907) 34 Cal 456: It has been held that, so far as a sulehnama decree covers matters not directly in issue in the suit, these terms of the sulehnama cannot be enforced in execution of the decree, but the decree is evidence of the agreement entered into as regards those matters. On behalf of the appellant it is pointed out that a different view has been taken by other High Courts in this country and that the decision referred to is an obiter dictum and was not necessary for the decision of the appeal in which it was made. It appears however that this view has never been dissented from in this Court, and in a recent decision of the Judicial Committee in Hemanta Kumari Debi V/s. Midnapore Zamindari Co Ltd. AIR 1919 PC 79 their Lordships expressed a similar view. I refer more particularly to their remarks at p. 539 where they said: it may be that as a decree, it was incapable of being executed outside the lands of the suit, but that does not prevent it being received in evidence of its contents. Taking this view I would hold that, whether under the terms of the sulehnama the decree-holder is entitled to recover possession of the property of Schedule 8 or not, he cannot enforce that right in execution of that decree, and for this reason, I would dismiss this appeal with costs.