- (1.) The Court : Mr. Mookherjee, learned senior advocate continues his submission in reply. He relies on judgement of a learned single Judge of Orissa High Court in Shyam Sundar Chaudhury & Ors. vs. Judhistir Jena & Ors reported in AIR 1983 Orissa 187, on paragraph 4 where the learned Judge said, inter alia, "... Prior to the amendment there was a conflict of decisions as to whether the Executing Court could refuse to execute the decree where it gave effect to the terms of a compromise which did not relate to the suit. But after the amendment the position has been clarified and such a decree will now be executable. ..."
(2.) On the question he also relies on view expressed by a learned single Judge of this Court by judgement dated 28th September, 2011 in GA 2239 of 2007 with CS 486 of 1991 ( Khem Chand Dhingra & Anr. vs. Prabir Roy Chowdhury & Ors .). He relies on that in the judgement which is extracted below : "Before the amending Act of 1976 the scope under Order 23 Rule 3 was limited to such compromise which relates to the subject matter of the suit but by amendment act of 1976 the provision under Order 23 Rule 3 have undergone a sea change which envisage that compromise can be effected in respect of a subject matter not similar to the subject-matter of the suit." He then relies on judgement of Supreme Court in Pushpa Devi Bhagat vs. Rajinder Singh and Others reported in (2006) 5 SCC 566, to paragraphs 18 and 19. On query from Court regarding definition of 'decree' given in sub- section (2) of section 2 in Code of Civil Procedure he submits, the definitions section says, in the Act, unless there is anything repugnant in the subject or context, the definition would be given as there. The definition given of decree is Court's expression conclusively determining rights of the parties with regard to all or any of the matters in controversy of the suit. This expression must be on adjudication. Present provision in Rule 3 of Order 23 does not contemplate adjudication and, therefore, is repugnant to the definition given.
(3.) He refers to section 51 and Rule 32 in Order 21 in the Code to demonstrate that on a party having had had his suit adjusted on compromise and decree obtained, on disobedience of the decree, including one relating to specific performance or mandatory injunction, the party had provisions in levying execution so as to not leave such a party remediless. List tomorrow (12th June, 2019) marked at 12.30 p.m.;