1. This is a first appeal by the defendants against a final decree for sale prepared under Order 34, Rule 5. The argument on appeal is that the provisions of Order 34, Rule 4 are not applicable to a mortgage decree based upon a compromise and the Court below has therefore erred in law in directing the preparation of a final decree, and further that the application for the preparation of the final decree is barred by time. The facts very briefly are that there was a mortgage executed by the predecessors of the defendants-appellants on 8th June 1910, for a sum of Rs. 12,000 in favour of the predecessors of the plaintiff-respondents. This was a usufructuary mortgage by which the usufruct of some 40 bighas odd of sir plots was mortgaged in lieu of interest, and two zamindari shares were mortgaged as security for the principal mortgage money. A Suit No. 4 of 1913 was brought by Maharaja Kesho Prosad, a stranger to the present case, in which: it was declared that the 40 bighas of sir was his property. Therefore as the property given by way of usufruct for payment of the interest was lost to the mortgagees, a compromise was entered into between the parties'. That compromise-was filed in Court, and all the defendants with the exception of Dharam Deo, were parties to the compromise. The compromise therefore became the subject of a decree, and the decree which was ax parte against Dharam Deo and against the other defendants was based on a compromise.. The order for the preparations of a decree was dated 31st January 1923. Accordingly a preliminary decree was drawn up purporting to be under Order 34, Rule 4 in which the terms of the compromise were set forth, and the decree then embodied two orders, the second of which was:
if such payment is not made into Court, the mortgaged property, or a sufficient part thereof, be sold, and that the proceeds of the sale (after defraying thereout the expenses of the sale), be paid into Court and applied in payment of what is declared due to the plaintiffs together with subsequent costs, and that the balance, if any, be paid to the defendants.
2. The first instalment of Rs. 8,000 was to be paid on 28th June 1923, and the second instalment on 17th June 1924. The defendants did not make any payment. Accordingly on 11th June 1926, the mortgagees filed an application for the preparation of a final decree under Order 34, Rule 5. Objections were taken by defendant 1 and defendants 2 and 3 against the preparation of that final decree, and their objections having been dismissed by the lower Court, the present appeal has been filed. The desire of the appellants is to claim that the preparation of the decree under Order 34, Rule 4 was incorrect, and that as the period of three years has elapsed between the date of the decree, 31st January 1923, and the application for preparation of a final decree, 11th June 1926, the Court should hold that the decree-holder is time-barred, and unable to execute his decree for Rs. 16,000. On the other hand, the respondents con-tend that as a default took place on 28th June 1923 when the judgment-debtors failed to pay the first instalment and the application for the preparation of a final decree was made within three years on 11th June 1926 therefore their application is not time-barred. The first point to be noted is that none of the defendants made any appeal against the preliminary decree passed under Order 34, Rule 4. Whether that decree was right or wrong, it has now become final as a preliminary decree between the parties, and it is not open to the defendants to bring that decree now in appeal on the ground that it is not in accordance with their compromise.
3. Reference is made by the learned Counsel for the appellant to Askari Hasan v. Jabangiramal : AIR1927All167 where it was held that when a compromise decree provides for the payment of mortgage money in instalments, and does mot provide for payment on a fixed date within six months from the date of declaring the amount due, Order 34, Rule 4 does not apply, and it is not necessary to apply for a final decree. It is not shown in this ruling that there was a preliminary decree which purported to be under Order 34, Rule 4, and this fact alone differentiates the ruling from the present case. But we also differentiate the ruling from the present case because the ruling merely laid down that it was not necessary for the decree-holder to apply for the preparation of a final decree. All that the ruling laid down was that, if the decree-holder had a decree on a compromise which he desired to execute, he should not be barred from applying for the execution of that decree, on the technical ground that a final decree in the terms of Order 34, Rule 5 was necessary in the particular circumstances of that case.
4. Reference is also made to A.I.R. 1926 Oudh 385, a ruling of the Oudh Chief Court. That ruling merely laid down that it was not necessary for a decree-holder to have had a final decree prepared if he desired to execute the preliminary decree which had been prepared on a compromise. There is therefore a distinction to be drawn from the present case in which the decree-holder applies for the preparation of a final decree. The learned Counsel for the appellants has altogether failed to produce any authority for this proposition that it is not open to a decree-holder to apply for the preparation of a final decree under Order 34, Rule 5 in a case similar to the present case.
5. We consider that no case has been made out in law for the appellants and it is obvious that they are entitled to no sympathy in equity. Accordingly we dismiss the appeal with costs.