1. By my order of 3rd January 1939 the Court below was directed to record a finding as to the date upon which the last payment was made by the judgment-debtors to the decree-holder. The finding of the lower Court has now been received. The learned Munsif has held that the last payment was made by the judgment-debtors on 12th December 1935. The present application for execution was made within one year of that date. It was contended for the judgment-debtors that inasmuch as the application was made after the expiry of three years from the date of the original decree it was time-barred. There is no doubt authority for this proposition in the decision by a Full Bench of this Court in Gobardhan Das v. Dau Dayal : AIR1932All273 . In that case it was held that the execution Court bad no power to vary a decree by substituting a compromise concluded between the decree-holder and the judgment-debtor and that the parties could not extend the period of limitation under Section 48, Civil P.C., by means of a compromise. This decision however can no longer be regarded as sound law in view of the decision of the Privy Council in Oudh Commercial Bank, Ltd., Fyzabad v. Thakurain Bind Basni Kuer . That was a case in which a decree was varied by means of a compromise and it was held that it was the duty of the executing Court under See. 47, Civil P.C., to ascertain the legal effect of the compromise and to order accordingly. In the course of their judgment the Board referred to the decision in Gobardhan Das v. Dau Dayal : AIR1932All273 and observed in reference to the judgment under appeal:
They do not consider that it takes sufficient account of the facts that the Code contains no general restriction of the parties liberty of contract with reference to their rights and obligations under the decree and that if they do contract upon terms which have reference to and affect the execution, discharge or satisfaction of the decree, the provisions of Section 47 involve that questions relating to such terms may fall to be determined by the executing Court. 'Amendment', or alteration of the decree whether under Section 152 or by review is a different matter under the Code. No doubt an adjustment if not recorded under Order 21, Rule 2, cannot be recognized by any Court executing the decree. The compromise of 1927 however was recorded: it was an adjustment even if it was something more, and it contained the terms upon which the adjustment was agreed to. It was not an attempt to bring under the decree a liability extraneous to the mortgage or the mortgage suit: of Pradyumna v. Dinendra Mullick . Their Lordships see nothing in the Code requiring them to hold that had the judgment-debtor paid the agreed instalments punctually the appellants, after 1927, could have executed the decree for the whole sum outstanding contrary to the terms of the compromise. Nor do they think it reasonable that such a compromise, if enforced by the executing Court, should not be enforced as a whole. They are not prepared to regard a fair and ordinary bargain for time in consideration of a reasonable rate of interest as an attempt to give jurisdiction to a Court to amend or vary the decree. Such a bargain has its effect upon the parties' right under the decree and the executing Court under Section 47 has jurisdiction to ascertain its legal effect and to order accordingly.
2. The effect of the compromise in the present instance is to convert the original decree into a decree for payment by instalments. Till 12th December 1935 these instalments were paid under the decree by the judgment-debtors. The decree-holder in view of the terms of the compromise could not put his decree into execution until the judgment-debtors had defaulted. The decree-holder in the circumstances therefore was entitled to put his decree into execution within three years after 12th December 1935. To hold otherwise would be to place the decree-holder at a very grave disadvantage as compared with the judgment-debtors who under the compromise secured a postponement of the liquidation of the debt. In the result the appeal is allowed, the order of the Court below is set aside and the objection of the judgment-debtors is repelled. The appellant is entitled to his costs. Leave to appeal is refused.