LexMOTI LAL BANKER versus MAHRAJ KUMAR MAHMOOD HASAN KHAN
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MOD LAL BANKER v. MAHRAJ KUMAR MAHMOOD HASAN KHAN February 9, 1968 (R. S. BACHAWAT AND V. ~HARGAVA, JJ.) CivU Procedure Code, 19os, •· 47 and 0.21 "· 2-Execution procuti- ings ending in compromise whereby interest .at rate higher than dttrttd rate agreed to be paid-if 1uch agreement enforceable in execution Droceedings. A suit filed by the appellant ended in a compromi&e ~nd was decreed on March 24, 1953 in. terms of the compromise. 1be decree direcital the respondent to pay within six months Rs. 22,500 plus interest at 6%. As the respondent failed to pay, 4he appellant commenced exe- cution proceedings on May 23, 1954 for Rs. 24,150 in the same court and these proceedings also ended in a compromise on May 29, · 1954 whereby the respondent agreed to pay within two months Rs. 24,150 "ith imerest at I% per month. The compromise was recorded by the executing court. Upon the .respondent's continued failure to pay, the appellant commenced the present execution proceedings on February 18, !955 for realization of Rs. 24.150 and interest at 1 %. The respondent filed objections under s. 47 C.P.C. and one of these was that the appel- lant could not realise interest at I% per month in execution of the decree. The executing court dismissed the objections. On appeal to tm High Court and upon a reference by • Division Bench, a Full Bench of ¢he High Ccurt held that a compromise entered in a proceeding for execution of a decree by which the judgment-debtor undertakes to pay interest at a rate higher than the decree rate of interest, is not enforceable in a proceeding for execution of the decree. On appeal to this Court. HELD : (i) ~ is open to the parties to enter into a compromise with reference to their rights and obligations under a decree. Thece is nothing in the Cede of Civil Procedure which prevents the parties from entering into such a compromise. If the compromise amounts l!o an adjustment of the docree, it must be recorded unde'r 0. 21, r. 2 and if not so recorded, it cannot be recognised by any Conrt executing I.he decree. The compromise of May 29. 1954 was so recorded within the prescribed period of limitation and was a fair bargain to postPone the execution of the decree on payment of reasonable interest. The terms of the compromise l'<!ated to the execution of the decree, the executing court has power to detennine all questions arising between the parties to the suit relating to the execution of the decree and to give 811Pto- priate relief on such determination. Exclusive power to determine such question is given to the executing court by s. 47 of the Code of Civil Pro- cedure. The agreement to pay the higher interest is enforceable in execu- tion of the decree. [160 F-161 BJ Mr. Hasan Khan v. Moti/al, A.I.R. 1961 All. 1; overruled. The Oudh Commercial Bank Ltd. v. Thakurain Bind Barni Kzur, (1939) L.R. 66 I.A. 84, 100-103; Sreeshteedhur Shaha v. Woomeshnath Roy, (1866) 5 W.R. (Miscellaneous Appeals) I; and Lakshmana v. Sukiya Bai, (1884) l.L.R. 7 Mad. 400 referred to. ll8 A B c D E F G H MOTILAL v. MAHMOOD HASAN (Bachawat, J.) 159 A The jurisdiction of the executing court to enforce suc;h a compromise B c D E F G R under s. 47 and O. 21. r. 2 is not affected by the provisions of 0. 23, r. 4, or 0. 20, r. 11 or o. 20, r. 3. [161 DJ Prudyumna Kumar Mullick v. Dinendra Mullick, [1937] L.R. 64 I.A. 302, referred to. The compromise decree of May 29, 1954 was also enforceable on the ground tha! as the execution proceedings were started in the same Court which passed the decree, that Court had the p0wer to pass an order under 0. 20, r. II in tenns of the comproinise of May 29, 1954 directing post- ponement of the execution of the decree on the term that the judgment- debtor would pay interest at the rate of I per cent per month until realisa- tion. The prescribed period of limitation of six molithS under Art. 175 of the Indian Limitation Act, 1908 for an appiidtioii for payment of the decretal amount by instalments did not apply to the Co_mpromise petition as it did not ask. for payment of the decretal amount by instalments but for postponement of the execution of the decree for two months. In any eyent the order passed art the petitioi;i was binding on the P.arties un.til it was set aside and could be enforced in execution proceedings. (162 BcD] Monmo/Jcn v. K/Ja/ishk/Jali Cooperdlive Bank, (1937) 41 C.W.N. 480; referred to. CIVIL APPEL
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