(PALLAMPATI) LAKSHMI NARAYANA Vs. IYANAPURAPU SURYANARAYANA

JUDGEMENT

(1.) In this case the question whether a certain portion of a compromise decree is executable arises for consideration. The suit was brought to recover possession of certain godowns and for past and future rent or profits. It was compromised and a decree passed in terms of the compromise petition filed by the parties. The plaintiff was not to get possession but the defendants agreed to acknowledge him as landlord, to pay up the arrears and to pay future ground rent at certain rates. It is this last condition with which we are now concerned and the question is whether it is so expressed as to be executable or whether it remains merely declaratory.

(2.) It appears to me that the question whether a decree is executable has to be settled primarily upon the form or language of the decree itself. If the form is unambiguously that of an executable decree, then it is executable in form whatever objections may appear to its execution. Only if it is ambiguous ought: considerations such as the apparent intentions of the parties and the presumed intention, of the Court to enter. Now in the present case there seems to me no doubt that the language of the decree is designed to render it executable. So far as the various payments are concerned, it begins by providing what are the amounts which the various defendants "shall pay" towards liabilities already accrued. Then it goes on: Hereafter, defendants 2 and 3 shall pay Re. 1-9-7, defendant 4 shall pay Re. 1-11- 0, defendants 5 and 6 shall pay Re. 1-18-8 and defendant 10 shall pay Re. 1-8-5, to the plaintiff and defendants 2 and 8 shall pay Re. 0-12-9, defendant 4 shall pay Re. 0-13-6, defendants 5 and 6 shall pay Re. 0-14-10 and defendant 10 shall pay Re.0-12-3 to defendants 7 to 9, towards the ground rent of the said kottus or shops every month in perpetuity on 1 March 1921 and on the 1 of every month subsequently. That if the money is not paid on the due date, the same shall be paid with interest thereon at 12 per cent from the date of default; the rent payable every month hereafter shall be a first charge on the kottus or shops and the site on which they stand.

(3.) The original decree is in Telugu. The English words "shall pay" in the passage above quoted are represented in Talugu by "Esthu Undelaguna," whereas in the earlier part of the decree they stand as "Echelaguna" a slight change of tense in the participle which is, I think, due to the fact that in the one case a single payment and in the other case periodical payments are involved. The two expressions may be rendered as "shall be paying" and "shall pay." There does not seem the slightest ground in the language used for holding that if the decree is executable as regards past liabilities it is only declaratory as regards future ones. The test to ascertain whether a decree is executable is whether there is a direct and definite order to a definite person to do or refrain from doing a definite thing : see Lalibai V/s. Valiram Ghanisham Das (1913) 7 S.L.R. 192 cited in Banu Mal V/s. Parash Ram 1930 Lah. 110. In the present instance the decree contains directions to certain definite persons to pay certain amounts of money on definite dates. It appeals to me that but for criticisms unconnected with its form it would not occur to any one to contend that it was unexcitable.