Desai, J. - (1.) I agree with my learned brother that the question should be answered in the negative. Since the question is of great importance, I shall state my reasons in my own words.
(2.) The scheme of the Civil Procedure Code is that in one proceeding the court determines the liability of a party and the corresponding right of the other party and incorporates them in the decree and in another proceeding it executes the decree, i.e., at the instance of one party specifically enforces the liability against the other. There can be no execution or specific enforcement of a liability without a previous determination of the liability by a court and incorporated in a formal document called a decree. The Code does not contemplate the determination of a liability and its specific enforcement in one proceeding. This is one of the main differences between a criminal proceeding and a civil proceeding that in the former the execution follows at once in the same proceeding whereas in the latter it is through a separate proceeding. In the article "The Distinguishing Mark of Crime" Seton Pollock writes in (1959) 22 Modern Law Review, 495, at page 496: "It appears to be true without exception that crimes are wrongs in respect of which the execution of the court's judgment thereon is undertaken (subject to any exercise of the Crown's power to remit) without the Crown being moved thereto or deflected therefrom by any other party. This, it would seem, is never true of a civil wrong for, here, the judgment of the court is terminal in the sense that nothing happens unless the complaining party initiates some ancillary process to move the court to execution, for example, by judgment summons or writ of fieri facias". There can, therefore, be no execution unless there exists a formal determination of the liability to be specifically enforced. An agreement or compromise, which is an act of the parties, is not a formal determination by the court of liability of one party to the other. A compromise may give rise to a formal determination, e.g. a decree, but is note itself a decree and cannot be executed. Even in a suit, in which parties are allowed to compromise, the compromise itself is not a decree but Ss to be followed by a decree incorporating the liability, agreed to by them. The determination of a liability, when there is a compromise in a suit, may appear to be a mere formal matter but is not so because the court has to determine whether the suit has been adjusted at all by the compromise and whether it is lawful or not; It is only when it is satisfied about these matters that it will hold that the liability of a party is that accepted by him in the compromise and will pass a decree embodying it. No such jurisdiction has been conferred upon, an executing court. Not only can there be nothing like a compromise in execution proceedings (unless the compromise has the effect of adjustment of the decree); but also an executing court has been given no jurisdiction to decide whether the compromise is lawful or not and to determine the liability arising from it. Not only has no power been conferred upon it to vary the terms of the decree already passed or to substitute in its, place another decree embodying the compromise but also no power has been conferred upon it to specifically enforce the compromise, even without doing so,
(3.) Section 47 is the only section that deals with the jurisdiction of an executing court. It is confined to determining all questions arising between the parties to the suit and relating to the execution, discharge or satisfaction of the decree. It enjoins that all these questions shall be determined by the executing court and not by a separate suit. All other questions can be determined by a separate suit. Any question that does not relate to the execution, discharge or satisfaction of the decree is thus not within the jurisdiction of the executing court. If there is a compromise after the passing of a decree by which its terms are varied, any question relating to the execution, discharge or satisfaction of the compromise cannot be said to be a question relating to the execution etc. of the decree. The compromise cannot be treated as the decree. If either party seeks to specifically enforce any term of the compromise, not only would it not be a case of executing the decree but also any question relating to the execution etc. of the compromise would not fall within the scope of Section 47 and cannot be determined by the executing court. If it cannot determine any question relating to the execution etc. of the compromise it means that it cannot execute the compromise. It is all the time concerned with the decree, whether in respect of its execution or in respect of its discharge or satisfaction. If a compromise that has the effect of discharging or satisfying it or preventing its execution is brought to its notice, it will certainly be bound to consider it, but only for the purpose of seeing whether the decree should be executed or not. The parties are not forbidden to compromise after the passing of a decree; they are free to do so, but only to the extent that the compromise is in respect of the mode of execution of the decree or amounts to an adjustment or satisfaction within the meaning of Order 21, Rule 2, so as to prevent the execution of the decree. If the decree has not been discharged or satisfied by adjustment or otherwise, it would be bound to be executed aS the instance of its holder. If the judgment-debtor objects to the execution on the ground of its being discharged or satisfied by adjustment or otherwise the executing Court will decide the objection and will refuse to execute the decree if the objection is upheld. It will thus either execute the decree or refuse to execute it; it has no other power. If a decree-holder wants to enforce a liability other than the judgment-debtor's decretal liability, it would strictly be not a question of execution of the decree and not be within the jurisdiction of the executing court. The mere fact that the new liability sought to be enforced by the decree-holder arises out of a compromise entered into between the parties in execution proceedings would be irrelevant; section 47 will govern the case all the same.;