HASSAN ALI Vs. GAUZI ALI MIR

JUDGEMENT

(1.) A preliminary objection was taken to this appeal that the appeal was premature, and that it did not lie at the present juncture. The inclination of my opinion is, having regard to Secs.562 and 588 of the Code of Civil: Procedure and the nature of the order made in this ease, that an appeal would lie, but I express no final opinion upon that point, as it has not been pressed and the parties desire that we should deliver our opinion upon the real point in issue.

(2.) The real point in issue is this: A compromise decree was passed in a suit brought by the present appellant, directing him to obtain khas possession of certain land by ousting the present respondent, and, in execution, he asked that the should be put into khas possession. The appellant in the Court below--I am taking the facts as found by the Court below, this being a second appeal--pleaded in execution "that there was an -agreement between him and the respondent previous to the compromise decree that he should not be in point of fact ousted from the lands in question, and that permanent rights over? the same should be granted by the respondent to him. He accordingly prayed that an issue might be raised regarding his objection, namely, whether there was or was not such an agreement." The question we have to decide is whether that matter can be gone into under Section 244 of the Code. The Court from which the appeal is brought held, that it could. I do not think that it can. In may opinion cases can only be inquired into under Section 344 when the existence of a decree which is susceptible and capable of execution is conceded, and it does not apply to a case when the object is to impugn the decree itself, or to set to a case inconsistent with the decree which it is sought to execute. In other words, Section 244 presupposes the existence of a decree which is validly susceptible of execution. The respondents say the does is only a paper decree, and there was an anterior bargain that it was not to be executed, and that therefore the decree is not susceptible of execution. The Court cannot go into the question of any such bargain under Section 244. If there were any such bargain which would give the present respondent in equity to stop the execution of the present decree, that right must be asserted in an independent suit in which probably his right would be, if he can make out his case, to have a perpetual injunction to restrain the present appellant from executing his decree. No doubt the authorities show that a liberal construction is to be placed upon Section 244, but it cannot apply to a case such as the present where, in effect, the respondent says that the decree is no decree at all and is only a paper decree. We cannot go behind the decree in any application under Section 244. Section 244, Clause (e) applies to questions relating to the execution, &c, of a decree which is unchallenged. We have been referred, to a Full Bench case of the Bombay High Court of Laldas Narandas V/s. Kishordas Devidas (1896) I.L.R. 22 Bom. 463. If that Court intended to hold that under circumstances such as the present, the Court can, under Section 244, go is to the question of a bargain anterior to the decree and not inserted in the decree, I respectfully dissent from chat view. The principle laid down in two recent cases of this Court, namely, that of Benode Lal Pakrashi V/s. Brajendra Kumar Saha (1902) 6 C.W.N. 796 and Chhoti Narain Singh V/s. Rameshwar Koer (1902) 6 C.W.N. 796, would appear to apply to the case now before us.

(3.) On these grounds, I think, the appeal must succeed and the order of the Court below must be discharged with costs.