MT. DHANNABAI JOHRI Vs. KESHRICHAND JOHRI

JUDGEMENT

(1.) IN Civil Suit No. 23 of 1919 in the Court of the Additional District Judge, Nagpur, the appellant Mt. Dhannabai sued the respondent Keshrichand and one Manmal, now represented by his widow Manabai, for partnership accounts and for the recovery of certain profits as well for division, by metes and bounds, and possession of the plaintiff's alleged share in the immovable property concerned, as well as for the recovery of ornaments specified in Schedule G. After the case had reached the evidence stage, a compromise was arrived at; the terms of the compromise are on record. Under it, the present appellant was held to be entitled to a three annas share, defendant 1 to a seven anna share and defendant 2 to six anna, share. It was further agreed, that defendant 1 should transact all the business of the firm, balance the accounts and render them when asked, other terms as to the amount of money, the plaintiff and defendant

(2.) MIGHT spend for the construction of a temple and of a bungalow, were also included, as well as various miscellaneous matters which it is unnecessary to specify here The decree passed in the case by the Additional District Judge cannot be described as a peculiarly clear or lucid one. It is in these terms: It is ordered and declared in terms of compromise that the plaintiff is entitled to three annas share only in the moveable and immovable property belonging to the firm of Ramkaran Hiralal noted on reverse and her claim for ornaments is dismissed as fufly satisfied out of Court. 2. Further, orders were passed in the decree as to costs in accordance with the terms of the compromise. The present appellant attempted to execute this decree in the lower Court, and the Additional District Judge, who was not the same officer as the one who had passed the decree in the suit, held that the application for execution did not lie. The main prayer in the execution was that the decree-holder should be put in joint possession of her share, that the profits should be ascertained and her share thereof credited to her in respect of the period ending in Dewali 1925, and that these profits and other items should be paid to her. The application for execution was opposed on the ground that merely a declaratory decree had been passed which was incapable of execution, and the Additional District Judge upheld this contention and dismissed the execution application.

(3.) WE have been referred, in this connexion, to the decision in Jayanuddin Khan v. Jamiruddin Sarkar [1917] 21 C. W. N. 835 and we are in full accord with the proposition laid down in that ruling. The proposition was to the effect that, in the case of a compromise decree, in order to properly understand and give effect to it, the Court is entitled to look behind the decree, so to speak, and consider the terms of the compromise. That case, however, was of a very different nature from the present one. There the decree contained the amounts to be repaid by the respective defendants in instalments, but it omitted to include another condition relating to the whole amount becoming due in default of a single kist. The decision of, Prideaux and Kinkhede, A.J.Cs., in Naraindas Bhagwanji & Go. v. Kalyanji Mawaji and Co. A.I.R. 1923 Nag. 173 merely laid down that the terms of an award of a private arbitrator, or, of an adjustment, if susceptible, in every detail, to an effective order in the nature of specific performance, can be given effect to in the Court's decree, even if the original suit was merely declaratory in nature.