SURENDRA NARAIN SHAH Vs. KANAI LAL DUGAR

JUDGEMENT

(1.) These appeals are by the judgment-debtors in an execution proceeding. The decree under execution is a compromise decree passed in a mortgage suit. The objection of the judgment- debtors was that the decree was incapable of execution. The learned Judge overruled that objection. Hence the present appeals by the judgment-debtors. The first point urged by the learned advocate for the appellants is that the decree is incapable of execution, inasmuch as it simply declared that by the compromise the plaintiff would be thereafter a mortgagee by conditional sale in respect of the properties mortgaged.

(2.) In other words, the contention is that the decree must be construed to be a decree declaring or creating rights which are unenforcible in execution and can be enforced only by a suit. The material portion of the decree in the present case is as follows: It is ordered and decreed that the suit be decreed in terms of the Refanama (petition of compromise) filed on behalf of both parties, that the parties be bound by the terms of the compromise and they do get their respective remedies in accordance therewith and that the petition of compromise which has been filed do form part of the decree.

(3.) From the terms of the decree it is clear that the decree not only declared the rights of the parties under the Solenama but directed certain acts to be done: Ordinarily the Indian Courts pass judgments which are to be enforced in execution and even when they create new relation involving fresh rights and obligations they provide fort working out the rights in execution. Barely do they create anew obligation without providing for its execution and indicating a suit as the only method of enforcing it: see Ramaswami V/s. M.P. M. Muthayya Chetty, 1925 Mad 279.