1. This is a first appeal by the judgment-debtors against an order of the Court below refusing to entertain an application to record an alleged compromise. The application was headed as an application under Order 23, Rule 3. The sole ground for refusal was that the alleged compromise was of a date subsequent to the final decree in the suit and therefore as Rule 4 of Order 23 states that Order 23 does not apply to execution proceedings the compromise could not be recorded under that Order. The judgment-debtor in appeal points out that although Order 23 will not apply Order 21, Rule 2 will apply and he asks that the Court below be directed to consider his allegations of a compromise under that rule. No ground has been shown by learned Counsel for the decree-holder as to why this should not be done. Some argument was made in regard to Gobardhan Das v. Dau Dayal : AIR1932All273 which was a Full Bench ruling of this Court. Among other matters there is a statement by one learned Judge on page 587:
The line of reasoning adopted in some cases is that a compromise in an execution Court is in the nature of an adjustment within the meaning of Order 21, Rule 2, and that, if certified, it can be enforced by the execution Court. But an adjustment within the meaning of that rule should be a transaction which extinguishes the decree as such in whole or in part and results in its total or partial satisfaction. A transaction by which parties agree to vary the mode by which the reliefs granted by the decree are to be realised in execution or vary the time when the decree becomes executable would really be a transaction attempting to vary the terms of the decree.
2. This point of view has been considered by their Lordships of the Privy Council in Oudh Commercial Bank Limited, Fyzabad v. Bind Basni Kuer where their Lordships observe as follows:
The authority relied upon by the learned Judges of the Chief Court is Gobardhan Das v. Dau Dayal : AIR1932All273 and the principle invoked is that the original decree cannot be altered or varied by the parties even with the sanction of the Court and that in any case mere consent of the parties cannot confer such a jurisdiction on the executing Court. This line of reasoning is not without support from other decisions of Indian High Courts though authority and practice to the contrary is also to be found. On this difficult and important question their Lordships are not in agreement with the view taken by the Chief Court. 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.
3. It appears to us therefore that there is no bar in law to the recording of the alleged compromise under Order 21, Rule 2. Accordingly we allow the appeal, set aside the order of the Court below, and remand this case to the Court below to hear the evidence for the parties and dispose of the application on the merits and according to law. Costs hitherto incurred in the Court below and here will abide the result.