1. The learned Judge does not appear to have applied his mind to the facts of this case and to have dismissed the objection of the judgment-debtors quite wrongly. In the application for execution itself it was admitted that under the decree annual instalments have to be paid by 31st July every year and in case of non-payment of two consecutive instalments the interest was to be chargeable and the entire decretal amount was to become payable. There is not a word in the judgment of the learned Judge to suggest that he had in his mind the idea that there ought to be a default in the payment of two consecutive instalments. The whole order is based on the supposition that there was a default because the instalment was not paid on 31st July 1923, but was accepted by the treasury on 1st August 1923. What happened on that date was that the judgment-debtors went to the treasury officer with the money and asked him to deposit it. The treasury officer wrote on the tender that on that day the treasury had been closed at 12 O'clock and the amount could not be taken. The officer himself was present on that occasion. Presumably it being the last day of the month the treasury for the sake of convenience was closed early so that the cash in hand might be counted. In any event the refusal of the treasury officer to take the money although it was tendered before 4 o'clock cannot amount to a default on the part of the judgment-debtors. The money was accepted the next day. Furthermore, it appears that the decree-holder waived his claim to recover the whole amount even if he had one. Again he accepted the instalment paid on 30th July 1924. The acceptance of these two instalments amounted to a clear waiver on his part. The learned Judge has not considered this point at all. Even the application for execution did not disclose cause of action for claiming the entire amount because two consecutive defaults were not even mentioned. The application as worded was misconceived and was premature. We would not, however, be disposed to reject the application on this score alone for the judgment-debtor himself admitted in his objection that the entire remaining decretal amount became due in a lump sum on 31st July 1926. Thus although the decree-holder made his application for execution under a complete misapprehension of the terms of the compromise decree there had actually been a default on the part of the judgment-debtor which would have authorized the decree-holder to apply for execution against the property in respect of the amount due on 31st July 1926.
2. There is, however, another objection raised by the judgment-debtor which is in our opinion fatal to the decree-holder's claim. The compromise contained the following prayer:
It is prayed that under Order 34, Rule 4, a decree may be passed for recovery of the money by instalments and in accordance with the aforesaid conditions.
3. On that application the Court passed an order for a decree in the terms of the compromise under Order 34, Rule 4, Civil P.C., and a decree was prepared in that form. Moreover, it is apparent from the order of the Court dated 5th September 1916, that only one defendant agreed to the compromise, the other being absent, and there can be no question whatever that the order passed against the other defendants was one under Order 34, Rule 4. The Judge of the Court below who decided this matter in a manner as unsatisfactory as that in which he decided the other questions before him considered that the case was governed by the decision of a Full Bench of this Court reported in Ashari Hasan v. Jahangiri Mal : AIR1927All167 . As it happens both of us were parties to that decision. The point there decided was that where a compromise decree provides for the payment of mortgage money in instalments and does not provide for payment on a fixed date within six months from the date of declaring the amount due, Order 34, Rule 6 has no application to the case. But in that case the parties had not agreed that the decree should be passed under Order 34, Rule 4, as they have in the present case. In our opinion this is an essential difference. We are aware of no decision to the effect that a preliminary decree under Order 34, Rule 4, cannot be passed in the terms of a compromise, land clearly such a compromise can have the effect of extending the period allowed for payment in accordance with the wishes of the parties, and must not be strictly limited to the period of six months prescribed by Rule 2(b), Order 34. This period can be extended at any time by the Court and failing authority to the contrary we are of opinion that it can be extended by the parties themselves in a compromise which is accepted by the Court. As the parties agreed that the decree should be drawn up under Order 34, Rule 4, we are bound to assume that they were aware of the law which requires a final decree under Rule 5. (And there is no question that the Court in passing the decree against all the defendants including those who were absent intended that the decree should be one under Order 34, Rule 4.) The decree-holders therefore were obliged to apply for a final decree before they can proceed to execution and they were debarred from making an application for sale in an execution Court.
4. A further point was raised on behalf of the judgment-debtor, namely that this decree has abated. One of the decree-holders Ugar Sen died in the year 1919 and no steps were taken within six months to substitute the name of his son in the decree. On the other hand the judgment-debtor continued to make his annual payments to the son Janeshtar Das up to the year 1924, and furthermore this is a case of a joint Hindu family, and we are unable to hold under those circumstances that the decree abated because the son of one of the deceased members of the family did not have his name substituted for that of his father within six months of the latter's decease. But the decision of this point is not material to the present case, as we are of opinion that the decree-holders were incompetent to apply for the sale of the property without obtaining in the first instance a final decree under Order 34, Rule 5.
5. We accordingly allow this appeal with costs and allow the objection of the judgment-debtor and order that the application for execution be dismissed with costs.