ORDER : This order disposes of also the Misc. Civil Appeal No.2 of 1952, heard with this appeal as arising out of an additional objection, by the judgment-debtor, to the execution sought by the decree-holder. 2. This is judgment-debtor's appeal against the order dated 16-1-52 of the Additional District Judge, Bhopal, allowing recovery of a sum of Rs.2423-5-9 and half share of certain ornaments deposited with a third person, in execution of a decree on an award incorporated in it. 3. The facts of the dispute are stated in detail in the order of the lower Court. The dates material to the decision of the appeal are: award given on 26-11-46 and alleged adjustment dated 23-5-47. The decree in the suit on the award passed on 1-12-47 and confirmed except in certain part in the appeal on 24-10-49. 4. The amount permitted to be recovered in execution consists of the following six items viz.: (1) Rs.196/- costs of the award proceedings; (2) Rs.678-4-6 awarded to the decree-holder-respondent in the decree; (3) Rs.224/- interest thereon; (4) Rs.1165/- future rent of the house at Bhilsa; (5) Rs.139-8-6 interest on this amount and (7) Rs.20-8-9 costs of the execution proceedings. Item No.6 in the list was half share in the ornaments deposited with one Jagannath. In this appeal there is no dispute regarding the recovery of the items of Rs.196/- and Rs.20-8-9. There is also no denying of the fact that the award and the decree passed on it orders payment of Rs.678-4-6 plus interest thereon at Rs.0-10-0 p.c. per month till its payment or recovery. There is further no doubt that the sum of Rs.1165/- consists of the half share of the rent of the house at Bhilsa since the date of the award not calculated in the award or the decree while the sum of Rs.139-8-6 is the interest on this amount of the future rent. 5. The application for execution was filed on 9-8-50 and the judgment-debtor filed an objection on 22-11-50 and another objection on 25-10-51. In para.9 of the former it was said that there is no decree for Rs.678-4-6 and its interest.
5. The application for execution was filed on 9-8-50 and the judgment-debtor filed an objection on 22-11-50 and another objection on 25-10-51. In para.9 of the former it was said that there is no decree for Rs.678-4-6 and its interest. In the latter objection it was said that a sum of Rs.553-7-0 was paid to an Arbitrator and adjusted towards the sum of Rs.678-4-6 on 23-5-47 i.e. after the award but before the decree and therefore only a sum of Rs.124/- and odd and interest only on this amount remained due. The learned Additional District Judge overruled both the objections separately by two orders. In para 9 of the order on the first objection it was observed that the decree orders payment of the amount of Rs.678-4-6 and future interest and therefore, the decree-holder was entitled to recover the two amounts. The other objection was overruled by a mere observation that it was covered by the first objection. 6. In this Court it is urged that the lower Court did not decide the question properly as no statement was recorded in answer to the second objection and the document dated 23-5-47 filed with it, passed by one of the arbitrators and as such the order is incorrect and this Court should decide the objection or send back the case for a fresh decision of the lower Court. On the other side it is urged that the Executing Court was bound to execute the decree as it stood and could not inquire into what had happened before the decree and as such the second objection was not tenable in law as also such part of the first objection as related to it. The respondent's learned counsel refers to the decision in - 'Bhaskar Dattatraya v. Nilkanth', AIR 1938 Nag 265 (A) and the appellant's learned counsel replied that if this matter is not inquired into and decided, it would lead to multiplicity of proceedings and litigation which should be avoided and therefore, the decisions in - 'Chidambaram Chettiar v. Krishna Vathiyar', AIR 1918 Mad 1174 (FB) (B) and - 'Laldas Narandas v. Kishordas Devidas', 22 Bom 463 (C) should be followed. 7. The point for determination is whether the executing Court had jurisdiction to inquire into a payment or adjustment before the decree at variance with the latter and I am clear that the answer is in the negative.
7. The point for determination is whether the executing Court had jurisdiction to inquire into a payment or adjustment before the decree at variance with the latter and I am clear that the answer is in the negative. Section 47, sub-sectior (1) reads thus: "All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit." It would thus appear that the question of payment or adjustment, as alleged, does not fall within the purview of the question relating to the execution, discharge or satisfaction of the decree. The executing Court has jurisdiction only with regard to the decree as it stands. In the order passed by Pollock J. in - 'AIR 1938 Nag 265 (A)' 'ibid' it has been observed at pp.265-266 that: "The facts in - 'Butchiah Chetti v. Tavar Rao Naidu', AIR 1931 Mad 399 (D), were very similar to the facts in the present case. There was a compromise and, in pursuance of that compromise, money was paid into Court and then there was a decree in which credit was not given for that payment. There the decision in - 'Mulla Ramzan v. Maung Po Kyaing', AIR. 1926 Rang 140 (E) was followed and it was held that an agreement which does not relate to execution but directly attacks the decree itself cannot be pleaded in execution and that it would be most dangerous to allow a decree to be attacked in execution." It would also appear that the decision in - 'AIR 1918 Mad 1174 (FB) (B)' 'ibid' was based on a practice prevailing in Madras Presidency.
This has been made clear by the majority of Judges who decided the case, that: "The uniform practice of this Court has been to allow such defence to be raised in execution instead of allowing it to be made the subject of future litigation." It would also appear that the Calcutta and Rangoon High Courts have taken the opposite view and at p.1175 it has been observed by Abdur Rahim, officiating C.J. that: "There is undoubtedly a great deal to be said in favour of the view taken in Calcutta and perhaps it would, in some cases, be embarrassing to the executing Court to inquire into agreements made before the passing of a decree and modifying its operation." The decision in - 22 Bom 463 (C)' 'ibid' follows suit. 8. In deciding disputes, the law, as it stands, shall be adhered to and not what it should be. The contention of the appellant's learned counsel amounts to urging that whatever may be the law on the point, the object of the Courts is to avoid multiplicity of proceedings and litigation and therefore the Courts should even discount the statutory law to achieve this object. To put it in a nut-shell it is said that whatever is laid down in S.47, Civil P.C., the Courts should so function as to achieve the object of avoiding further litigation. In my opinion, it is not the function of the Court to state what the law should have been but what it is and in this connection I would only cite the observation in - 'Sadananda Pyne v. Harinam Sha', AIR 1950 Cal 179 (P) that: "Courts must resist the temptation to change the law under cover of interpretation of law. If they use their power to interpret law, to alter laws which they may not like, and to make new laws which they think should be made, that would be a corrupt use of their power." Multiplicity of litigation has no doubt to be avoided, but this is to be achieved only if possible under the law as it stands. The Courts cannot go beyond the law in order to achieve the above object. The principle is to be followed only if the provision of law admits of different interpretations and cannot be stretched so as to discount or militate against the law as it stands.
The Courts cannot go beyond the law in order to achieve the above object. The principle is to be followed only if the provision of law admits of different interpretations and cannot be stretched so as to discount or militate against the law as it stands. The Courts are bound to apply the law as it is made and cannot enter into the question of what it should have been however laudable the object behind the latter is. In this view then I am clear that the executing Court had no jurisdiction to inquire into the alleged payment or adjustment admittedly before the decree was passed. The next question of fact of the alleged payment or adjustment, therefore, does not arise. 9-13. I cannot but observe that the second objection was filed very late i.e. on 20-10-51 and should not have been allowed as a separate objection but by way of an amendment to the first. The learned Additional District Judge seems to have fallen into a pit-fall and does not seem to have read the whole of it when he observed that it was covered by a portion of the first objection. It may be pointed out that specific allegations of payment and adjustment, even though prior to the decree, were made in it and a document in support of payment was also filed with it. The learned Additional District Judge obviously overlooked it. Then as it was treated as a second objection, the decree-holder should have been called upon to reply to it and to admit or deny the document. The manner, in which the parties and the Court dealt with it, exposes it to the possibility of a remand which involves waste of time, labour and money of all concerned. However, as on the legal aspect it is held that the factual allegations cannot be inquired into by the executing Court, the Misc. Civil Appeal No.2 of 1952 fails and is dismissed and I make no order for costs in that appeal. (His Lordship then considered the question as to the amount to which the decree-holder was entitled). 14.
However, as on the legal aspect it is held that the factual allegations cannot be inquired into by the executing Court, the Misc. Civil Appeal No.2 of 1952 fails and is dismissed and I make no order for costs in that appeal. (His Lordship then considered the question as to the amount to which the decree-holder was entitled). 14. The result is that the decree-holder is entitled to recover only the following items viz: (1) Rs.196/- costs of the award proceedings; (2) Rs.678-4-6 awarded to the decree-holder-respondent in the decree; (3) Rs.224/- interest thereon and (4) Rs.20-8-0 as costs of the execution proceedings and (5) half share of the value of the ornaments deposited with Jagannath which he is said to have produced in Court. The decree-holder is not entitled to recover the two sums of Rs.1,165/-, future rent of the house at Bhilsa and Rs.139-8-6 interest on this amount. 15. The appeal is, therefore, partly allowed and the order of the lower Court is modified as above. In view of the extreme positions taken by the parties in this Court, they shall bear their own costs in this appeal also. Order accordingly. Appeal partly allowed.