Jagdish Sahai, J. - (1.) I have had the advantage of reading the opinion prepared by my brother Pathak, but for reasons stated in this opinion, I am unable to agree with him and nave come to opposite conclusions.
(2.) THIS second appeal arises out of the proceedings for execution of the decree passed in Civil Suit No. 18 of 1950 of the Court of the Civil Judge, Ghazipur, on 17-3-1952 in terms of the compromise entered into by the parlies on that date. The plaintiff to the suit was Mukhtar Ahmad who is respondent in this second appeal-The defendants were Habib Mian and Ishaq Mian, who are the appellants before us. Clause 1 of the compromise deed provides that in view of the compromise arrived at between the parties, a decree in favour of the plaintiff and against the defendant No. 2 for a sum of Rs. 6,500 be passed subject to the condition that the decretal amount shall be payable in four annual instalments. The first instalment would be due on 31st of March 1953 and the remaining instalments shall be payable on March 31 of the succeeding years. In case of default in payment of any instalment, the decree-holder would be entitled to execute the decree for the instalments remaining due. Clause 2 of the compromise deed is to the effect that the plaintiff would get Suit No. 121 of 1951, which he has filed in the Court of the Munsif, Mahmodabad, dismissed within a period of one week from "today" (17-3-1952). In case the plaintiff does not get the suit dismissed within the aforesaid period, the defendant would be entitled to move the Court for the dismissal of the suit by filing a copy of the compromise deed in that Court.
(3.) CLAUSE 4 of the compromise deed provides that the plaintiff is responsible to get the appeal filed by his aunt, Mst. Koza ibi, in the High Court against the decree passed by the Civil Judge, Ghazipur, in suit No. 9 of 1951, dismissed. In case the plaintiff does not get the aforesaid appeal dismissed, all the terms of this compromise would be deemed to have been cancelled and the suit would be deemed to have been dismissed. In case he (the plaintiff) gets the appeal dismissed, the costs of the appeal shall be on the parties.;