1. The facts are these. Plaintiff brought a suit on a mortgage executed to him by defendant No.1 for himself and as guardian of defendant No.2 the suit was compromised and a decree was passed which provided,
2. A. that the amount due to plaintiff was Rs. 200 out of which he was to give Rs.30;
3. B. that Rs.170 was to be paid by defendant by a certain date;
4. C. that in default plaintiff was to recover Rs 200 and interest by executing the decree. (1) personally against defendant No.1, (2) by selling the mortgaged property, (3) out of the other property of defendants.
5. Defendants defaulted, after which four attempts were made to execute the decree. Defendants had notice of the applications and on one occasion they actually appeared.
6. On that occasion they did not contend that the decree was unexecutable but merely asked for the adjournment of the sale. This is fifth attempt at execution. Before he Munsif, both of the defendants appeared. Defendant No.1 pleaded that he had made certain payments to plaintiff. These the Court refused to recognise. Defendant No.2 contended,
7. A. That he was not bound by the decree; B. that the decree was unexecutable as it was merely a preliminary decree.
8. The Munsif found against him on both points and he appealed. His appeal was unsuccessful before the Sub-Judge against whose order be has again appealed.
9. On the first question--that is to say--whether the decree is binding on defendant No.2, it is clear that he was properly represented in the suit and that the Court granted permission for the compromise as far as he was concerned. The decree against him is valid and binding and he cannot now question it. On the 2nd, we think that the Courts below were right. What was passed was not a preliminary mortgage-decree but a decree by consent. In a case not unlike this, Baja Hamendra Lai Singh v. Fakir Chandra Datta 74 Ind. Cas. 929 : 27 C.W.N. 621 : 50 C. 650 : A.I.R. (1928) (C) 626, it was decided that a compromise decree could not be treated as a preliminary decree, the intention of the parties being that in default, the decree-holder should be entitled at once to realise the amount due to him by the sale of the properties covered by the decree. In another case of a consent decree passed in a mortgage suit, Arunabati v. Bam Niranjan 58 Ind. Cas. 299 : 2 P.L, a similar conclusion was arrived at. We find in this case that the decree that was passed by consent was not a preliminary decree and was executable.
10. A third question was raised and found against defendant No.2. Defendants had had notice of the four previous attempts to execute the decree and never appeared to contend that the decree was unexecutable. The lower Courts found that it was not now open to them to raise such a contention. It is not necessary for us to decide the appeal on this ground. Defendant No. 2 argues that he cannot be bound by his guardian's negligence in not appearing to oppose execution. It is not apparent how the failure to take a wholly untenable objection can be described as negligence.
11. Appeal is dismissed with costs.