1. In this case the question whether a certain portion of a compromise decree is executable arises for consideration. The suit was brought to recover possession of certain godowns and for past and future rent or profits. It was compromised and a decree passed in terms of the compromise petition filed by the parties. The plaintiff was not to get possession but the defendants agreed to acknowledge him as landlord, to pay up the arrears and to pay future ground rent at certain rates. It is this last condition with which we are now concerned and the question is whether it is so expressed as to be executable or whether it remains merely declaratory.
2. It appears to me that the question whether a decree is executable has to be settled primarily upon the form or language of the decree itself. If the form is unambiguously that of an executable decree, then it is executable in form whatever objections may appear to its execution. Only if it is ambiguous ought: considerations such as the apparent' intentions of the parties and the presumed intention, of the Court to enter. Now in the present case there seems to me no doubt that the language of the decree is designed to render it executable. So far as the various payments are concerned, it begins by providing what are the amounts which the various defendants 'shall pay' towards liabilities already accrued. Then it goes on:
Hereafter, defendants 2 and 3 shall pay Re. 1-9-7, defendant 4 shall pay Re. 1-11-0, defendants 5 and 6 shall pay Re. 1-18-8 and defendant 10 shall pay Re. 1-8-5, to the plaintiff and defendants 2 and 8 shall pay Re. 0-12-9, defendant 4 shall pay Re. 0-13-6, defendants 5 and 6 shall pay Re. 0-14-10 and defendant 10 shall pay Re.0-12-3 to defendants 7 to 9, towards the ground rent of the said kottus or shops every month in perpetuity on 1st March 1921 and on the 1st of every month subsequently. That if the money is not paid on the due date, the same shall be paid with interest thereon at 12 per cent from the date of default; the rent payable every month hereafter shall be a first charge on the kottus or shops and the site on which they stand.
3. The original decree is in Telugu. The English words 'shall pay' in the passage above quoted are represented in Talugu by 'Esthu Undelaguna,' whereas in the earlier part of the decree they stand as 'Echelaguna' a slight change of tense in the participle which is, I think, due to the fact that in the one case a single payment and in the other case periodical payments are involved. The two expressions may be rendered as 'shall be paying' and 'shall pay.' There does not seem the slightest ground in the language used for holding that if the decree is executable as regards past liabilities it is only declaratory as regards future ones. The test to ascertain whether a decree is executable is whether there is a direct and definite order to a definite person to do or refrain from doing a definite thing : see Lalibai v. Valiram Ghanisham Das (1913) 7 S.L.R. 192 cited in Banu Mal v. Parash Ram 1930 Lah. 110. In the present instance the decree contains directions to certain definite persons to pay certain amounts of money on definite dates. It appeals to me that but for criticisms unconnected with its form it would not occur to any one to contend that it was unexcitable.
4. The objection raised to executing it depends of course upon the fact that execution involves the enforcement of periodical payments without limit as to time. The question is whether it was beyond the competence of the Court to pass such a decree or whether there is any other legal objection to executing it according to its tenor. It is to be noted that this is not the same question as whether the Court was well advised to pass a decree in this form, which is the point to which some of the arguments used by the Courts below seem rather to be directed. It may well be that, had the Court's attention been drawn to the unusual nature of this part of the compromise decree it would not have parsed it as it stood. But having passed a decree executable in form the question is whether it can now refuse to execute it. It seems to me that the time has gone by when objections based for example on the Court-fees Act could be effectively advanced, and that the decree-holder is entitled to hold the Court to the consequences of making such a decree unless its act in doing so was-clearly ultra vires.
5. There has not been cited to me any provision of law disabling a Court from passing a decree directing payment of periodical sums of money. On the contrary we have a fairly close analogy in the familiar maintenance decree. It would perhaps be improper to attach too much weight to that analogy, because when the question has arisen whether a Court can pass such a decree usage has generally been invoked as sanction for such a course. Thus in Sinthayee v. Thankapudayen (1868) 4 M.H.C. 183, it has been observed that the practice of all the Indian Courts has been for very many years to make decrees for payments of future maintenance to Hindu widows and that if the Courts have authority to decree such payments it follows that such decrees must be capable of execution in the same way as decrees for payment of money by instalments may be executed. The learned Judges add that there is nothing which they can discover in the Stamp Act or in the Civil Procedure Code to prevent the execution of such a decree. In Ashutosh Bannerjee v. Lukshmony Debya (1892) 19 Cal. 139 (F.B.), the question whether, where a decree directs payment of maintenance in future, such maintenance may be recovered in execution of the decree was referred to a Full Bench which answered it in the affirmative, pointing out that this form of decree had existed for a long time and adding,
it seems to us impossible to say that a form, of decree adopted by all the Courts of this country, sanctioned by the decisions of their Lordships of the Privy Council, and which has never been successfully attacked, can now be considered irregular. Indeed so far from that being, the case, it bears a striking resemblance to the form of decrees for maintenance given by Courts of Equity in England.
6. In Lakshman Ramachandra v. Satyabhamabai (1887) 2 Bom. 494 and Vishnu Shanbhog v. Manjamma (1885) 9 Bom. 108 reasons are given why it is desirable that such decrees should be executable. The decree which was before the Privy Council in Sin Manug v. Ma Tok 1927 P.C. 146, concerned an annuity and although the question related to its excitability, no exception was taken on the score, that a decree of that kind should not be executed. It does not of course follow that because the making and execution of maintenance decrees providing for future payments of maintenance has been recognised as permissible, all kinds of other decrees providing for periodical payments should also be recognized and acted upon. Apart from these maintenance cases one or two judicial decisions or dicta appear to have some bearing upon the question. The Privy Council casa Kishore Bun v. Dwarkanath Adhikari (1894) 21 Cal. 784, dealt with a decree which provided for the periodical supply to the plaintiffs, who were officiating priests in a temple, of certain articles necessary for the performance of worship. So far as it appears, the provision in the decree was without limit as to time. It was urged that the decree was merely a declaratory one but their Lordships said that they had no doubt that it could be executed. In Board of Control v. Balajee Ammar 1928 Mad. 61, the question arose whether certain terms of a scheme settled by suit under Section 92, Civil P.C. could be enforced by executing the decree embodying the scheme. Ramesam, J., has discussed the general question of the executability of such decrees and incidentally of other decrees which for this purpose would have to be kept alive indefinitely. He points out that a decree awarding maintenance to a widow may be executable for nearly a hundred years and that a decree giving an injunction in respect of a lease for 999 years may be executable for a very long period. He says:
I do not see any reason why there may not be some clause in the scheme which amounts to a direction to the defendants to perform some duty, such as the payment of money either at a point of time or periodically, and why such a direction should not be executable.
7. Of course the decree must be definite in form, and liability to make the payment should not be contingent upon the occurrence of some event as was the case, for instance, in Chamanlal v. Bapubhai (1898) 22 Bom. 669. This last case is one of those relied upon by the learned District Judge but I do not think that it is of much assistance Vinayak Amrit Deshpande v. Abaji Haibatrai (1888) 12 Bom. 416, another case which he cites, was decided upon particular facts including the meaning of ' mesne profits.' In Kashi Ram Sahibunnissa (1912) 15 O.C. 99, a case of the Oudh Judicial Commissioner's Court, it appears that no date was fixed for payment, and that the language of the decree showed that it was merely declaratory.
8. My conclusions are that the decree is indisputably executable in form and that the mere fact that doubt may exist whether it ought to be executed is no proper ground for attempting to strain] the language to a contrary effect. Indeed, the tendency should be against deciding that a decree is non-executable in effect : see Taraprasanna Ganuguli v. Noresh Chandra Chankrabarti (1933) Cal. 329. As regards the legality of such a decree, I cannot find that it is beyond the competence of the Court to pass a decree in these terms; indeed such a decree even carries with it certain advantages, inasmuch as for the recovery of fixed sums periodically payable the decree-holder will not be driven to sue afresh upon the occasion of each default. It need scarcely be said that for the avoidance of multiplicity of suits the procedure of the Courts should be as adaptable and elastic as is reasonably possible. Objection has been made that a decree requiring payment of ground rent in perpetuity does not take into account possible changes in amount or in the party liable. This again would be a ground rather against the passing of such a decree than of executing it, and such questions may be left until they arise. Considerations such as these arise also in maintenance cases, and in Sinthayee v. Thankapudayen (1868) 4 M.H.C. 183 and Venkanna v. Aitamma (1889) 12 Mad. 183, have been dismissed as no sufficient ground for refusing to pass such decrees. It may be that decrees like the present should not be passed, but once passed I cannot find sufficient ground why execution should be refused. I accordingly allow the appeal, set aside the orders of the Court below and direct the Subordinate Judge to proceed with E.A. No. 697 of 1928 in O.S. No. 22 of 1919. The respondents will pay the appellant's costs throughout.