1. One Ashutosh Roy Choudhury, the predecessor of the respondents in the present appeal, obtained an ex parte money decree against the predecessor of the appellant in this appeal for a sum of Rs. 2288 together with costs. The decree was pronounced on 16th May 1927, and it was signed on 2nd June 1927. Subsequently, the decree-holder applied for execution in two consecutive proceedings which were admittedly within time and which were, for some reason with which we are not concerned, dismissed. Eventually, in 1933, another Execution case No. 109 of 1933, was instituted by the decree-holder. In that case a compromise was entered into between the decree-holder and the judgment-debtor on 20th July 1934, by which the decretal dues were adjusted at a sum of rupees 3295-1-3 including interest and costs. The main terms of the compromise were that a sum of Rs. 1500 was to be paid by the judgment-debtor to the decree-holder in nine annual instalments, and it was stipulated that the decree would be regarded as fully satisfied if and when a sum of Rs. 1500 only out of the figure of Rs. 3295-1-3 just mentioned had been paid in the manner stated. It was further agreed that if the judgment-debtor made default in the payment of any instalment, the decree-holder would be entitled to recover the entire decretal amount. Certain properties of the judgment-debtors were hypothecated by this compromise as security for the decretal amount in the event of any default taking place in the payment of instalments This compromise was recorded in the execution proceedings and the execution case was dismissed. Thereafter four instalments were in fact paid, but there was a default in the payment of the fifth instalment.
2. On 9th September 1941, that is to say, more than 12 years after the passing of the decree, the execution case out of which this appeal arises was started. Upon an objection being taken by the judgment-debtor, the present appellant, it was held by the Court of first instance that the present execution proceeding was barred by limitation. This decision has, however, been reversed on appeal by the learned appellate Court below, and the present appeal is directed against that decision. On behalf of the appellant, it is contended that the execution is clearly time-barred, because what the respondents were endeavouring to execute in the present case was the original decree of 26th May 1927. The learned advocate who appears for the appellant has contended with great plausibility that this is not a case in which it can be said that a new decree was substituted in place of the original decree by the compromise which the parties arrived at on 20th' July 1934. He has, in our judgment, rightly distinguished the case in Hriday Mohan Sanyal v. Khagendranath Sanyal : AIR1929Cal687 , in which the execution with which the Court was concerned was execution not of the original decree, but of a subsequent decree which had superseded the former by reason of a new arrangement entered into by the parties. In our judgment, this case has no application to the facts with which we are dealing because the language of the compromise deed entered into by the parties to the present proceeding is inconsistent with the view that they intended to replace the original decree of 26th May 1927, by any subsequent arrangement capable of execution as a decree. In para. 4 of the petition of compromise the following words occur : 'I the judgment-debtor remain bound to pay to you... the entire amount due to you under this decree....' and in para. 5 the following words appear : 'You shall be entitled to realise the amount payable by me in execution of the decree....'
3. The language of the compromise leaves no room for doubt that the intention of the parties was that in the event of default in the payment of any one instalment, what would be enforcible through the process of the Court was the original decree. The fact that certain specific properties of the judgment-debtor were being hypothecated so as to make them answerable for the decretal amount makes no difference to the intention of the parties that it was the original decree which was to be executed in the event of default in the payment of an instalment. On behalf of the decree-holder respondents, it has been contended on the other hand by Mr. Ghose that limitation would run from the date upon which the judgment-debtor defaulted in the payment of the 5th instalment, and he bases his contention on the language of Clause (b) of Sub-section (1) of Section 48, Civil P.C. His contention is that this execution case was within time, because it was within 12 years of the date of default contemplated by that clause. The material words of that clause are:
where the decree or any subsequent order directs any payment of money ... at recurring periods, the date of the default in making the payment ... in respect of which the applicant seeks to execute the decree.
Now the applicant in the present case is seeking to execute the decree in respect of the entire decretal amount. By reason of the compromise it can be said that there has been a default in making payment of the entire decretal amount inasmuch as such payment became due directly the judgment-debtor made default in payment of the 5th instalment. It follows, therefore, that this clause would apply, provided there was any 'subsequent order' directing the payment of the amount in question. Now it is not disputed that the compromise arrived at between the parties was recorded in the execution case, and that the execution case was disposed of on the basis of that compromise. In so far as the compromise contained any operative words, those words became an order of the executing Court, and that being so, they would come within the intention of the words 'any subsequent order' contained in Section 48, Sub-section (1), Clause (b), Civil P.C. It was contended in answer to this that 'subsequent order' in this provision cannot mean the order of the executing Court, but must apply to orders passed by that Court alone which pronounced the decree. This point is clearly concluded by authority. In Kartick Chandra v. Bata Krishna : AIR1938Cal25 , it was held that an order of the High Court made after an appeal in an execution case had been dismissed, but during the pendency of an application for leave to appeal to the Privy Council, was an order within the meaning of the words in Clause (b) of Sub-section (1) of Section 48, Civil P.C. In that case the order of the Court was one which had been passed in terms of a compromise arrived at between the judgment-debtor and the decree-holder, by which it was stipulated that the decretal amount would be paid by instalments and that the limitation contained in Section 48, Civil P.C., would run from the date of the default of the judgment-debtor to pay any one of the instalments stipulated.
4. A different view once found favour with the Allahabad High Court, but the view now taken by that Court seems to be in accordance with the decision just referred to. In Pratab Bahadur Sahi v. Hari Ram Marwari : AIR1940All423 , a compromise had been entered into between a decree-holder and a judgment-debtor in execution proceedings, and it had been stipulated that the decretal amount was to be paid in 8 annual instalments. A default was made in payment of the 5th instalment and the decree-holder made an application for execution, but this application was found to be more than 12 years after the date of the decree. The Court held that the case fell under Clause (b) of Section 48, Sub-section (1), Civil P.C., and the application for execution was not barred by limitation under that section. The appeal accordingly fails and is dismissed with costs. We assess the hearing fee at two gold mohurs.