1. This appeal has been filed by the judgment-debtor against the appellate order of the Civil Judge, Baran, holding that the decree-holder's application for execution was not time barred.
2. The facts are that the decree-holder obtained a decree against the judgment-debtor Abdul Lateef Khan on 20-3-1937 and the decretal amount was to be paid in yearly instalments of Rs, 507-each. On failure of any one of the instalments the whole amount was to become due and the decree-holder was entitled to execute the decree for the whole amount. The decree-holder filed an application for execution on 29-1-1940 and while the proceedings for execution were pending, a compromise was made between the parties on 24-6-1941 and it was stipulated that the balance of decretal amount was to be paid in yearly instalments of Rs. 75/-. Some instalments were paid, but the balance of Rs. 178/14/- remained unpaid for which the decree-holder put in the present application on- 1-5-1950. The judgment-debtor objected that the decree was time barred as it could not be executed after twelve years from 20-3-1937, the date on which the decree was passed. The learned Munsif of Chabra repelled the objection of the judgment-debtor.
The judgment-debtor went in appeal to the court of the Civil Judge, Baran, who has also held that the execution was not barred under Section 48, Civil P. C. as twelve years had not expired from 24-6-1941, when the compromise made between the parties was recorded in court. Against this order the judgment-debtor has come in appeal.
3. The only point that has been argued by Mr. K.C. Banghi on behalf of the appellant is that twelve years should be computed from 20-3-1931 the date on which the decree was originally passed & not from 24-6-1941. He has relied upon the rulings of the Chief Court of Oudh and Patna High Court, The Patna High Court in the case of -- 'Bishwa-nath Prasad v. Lachhmi Narain', AIR 1935 Pat 380 (A), held that
'A subsequent compromise order is not an order contemplated by Section 48(1)(b)'. Section 48(1)(b) is as follows: 'Where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.'
Oudh Chief Court in the case of -- 'Nahil Husainv. Syed Ahmed', AIR 1936 Oudh 266 (B), held that
'subsequent order within the meaning of S.48(l)(b) should be passed by court which passedthe decree and not an order made in course ofexecution.'
This is based on a Pull Bench decision of Allahabad High Court in the case of -- 'Gobardhan Das v. Dau DayaP, AIR 1932 All 273 (C).
On behalf of the respondent reliance was placed upon later decisions of Allahabad High Court which are based upon a decision of the Privy Council in the case of -- 'Oudh Commercial Bank, Ltd. v. Bind Basni Kuer', AIR 1939 PC 80 (D). In that case their Lordships of the Privy Council observed that the Code contains no general restriction on the parties' liberty of contract with reference to their rights and obligations under the decree and that in the absence of express statutory authority, it was not possible to regard Order 20,, Rule 10 as excluding any possibility of the parties coming to a valid agreement for time to which the Court under Section 47 will have regard. In the case of -- 'Chhatra Pati Pertab Bahadur v. Hari Ram', AIR 1940 All 423 (E), the decree-holder obtained a decree against the judgment-debtor on 17-5-1926. On 21-4-1928 a compromise was entered into between the parties in the execution proceeding by which the decretal money was to be paid in eight yearly instalments, each instalment payable on 31st May. The judgment-debtor paid the first four instalments, but made a default in the payment of the fifth instalment which fell due on 31-5-1933. The application, for execution was made by the decree-holder on. 5-7-1938. It was held that the period of twelve years would be computed from the date of the default, i.e., from 31-5-1933, and the application therefore was within time and was not barred by Section 48.
In the Full Bench case of the same High Court in the case of -- 'Mahendar Rao v. BLshamber Nath', AIR 1940 All 270 (F), the decree-holder obtained a final decree for sale on 29-1-1924. Afterwards the parties arrived at a compromise on 19-10-1926. During execution proceedings under this compromise, the decree-holder received some amount and with respect to the balance, yearly instalments were fixed. The first instalment was payable on 8-12-1927 and it was provided that if any instalment was. not paid the balance of the decretal amount could be recovered in a lump sum by auction sale of the hypothecated property. This compromise was recorded in Court. Some instalments were paid in part. Limitation was computed from the date of the default of these instalments. But the judgment-debtor objected that limitation ought to have been computed from the date, the decree was passed. It was observed following the observations of their Lordships of the Privy Council in -- 'Oudh Commercial Bank Ltd., case (D)', referred to above that limitation could be computed according to the subsequent compromise.
In a Division Bench case of Calcutta High Courtin the case of -- 'Jatindra Nath v. HerambaChandra', AIR 1945 Cal 154 (G) the decree was.dated 26-1-1927 and the compromise was enteredbetween the parties on 20-7-1934, whereby thedecretal amount was adjusted and the same wasto be paid by nine instalments. On default of anyone instalment, the decree-holder was entitled to-recover the entire decretal amount. The compromise was recorded in the execution proceeding and'the execution case was dismissed. There was adefault in the payment of the fifth instalment andon 19-9-1941, that is to say, more than twelve yearsafter the passing of the decree an execution casewas started. The judgment-debtor contended thatas the decree-holder was seeking to execute theoriginal decree dated 26-5-1927, and the executioncase was started more than twelve years of thatdate, the execution was barred, while it was arguedon behalf of the decree-holder that the limitationwould run from the date of the default of the fifthinstalment and the execution therefore was withintime under Section 48(1Kb). It was observed that
'The words 'subsquent order' in Section 48(l)(b) werenot restricted to decree but included order ofthe execution Court. The order of the executing.Court disposing of the compromise was a 'subsequent order' within the meaning of Section 48(l)(b).The limitation for fresh execution applicationtherefore would run from the date of the defaultin the payment of any instalment.'
The Bombay High Court too in the case of-- 'D. S. Apte v. Tirmal Hanmant', AIR 1925 Bom503 (H), took the same view. In view of the observations of their Lordships of the Privy Councilin -- 'Oudh Commercial Bank case (D)', referred to above, the rulings of Allahabad, Calcutta and I Bombay High Courts referred to above, appeal more to me, and in my opinion, the words 'subsequent order' would include any order passed during execution proceedings on the compromise of the parties recorded in Court.
4. The appeal to my mind has no force and it is dismissed with costs to the contesting respondent.