Omprakash Narain Singh v. Jagarnath Prasad — 1958 DIGILAW 178 (PAT)

Judgment Kanhaiya Singh, J. 1. These are decree-holders appeals and arise out of objections made in two execution proceedings under, Sec. 47 of the Code of Civil Procedure that the applications for execution are barred by limitation. The parties being the same in both the appeals and the question of law raised being common, I will deal with these appeals in a common judgment, separating them, however, as convenient. The main question involved in these appeals is whether the applications for execution presented by the decree-holder appellant are barred under sec. 48 of the Code as being more than twelve years from the date of final mortgage decrees for sale. The point is not altogether an easy one and there have been differences of opinion in the, different High Courts but, I think, the answer is clear. Shorn of unnecessary details, the facts not in controversy are as follows. 2. The final mortgage decree in Miscellaneous Appeal 17 of 1955 arising out of Execution Case 81 of 1954 of the Subordinate Judges Court, Gaya, was passed on 28th July, 1941. This was the last application for execution and was presented on 23rd September, 1954. Previously, certain proceedings in execution had been taken which, it is not necessary to relate. The present application was obviously more than twelve years from the date of the decree, and ordinarily the application would be barred under Sec. 48 of the Code. In fact, this was the objection taken by the judgment-debtors in their application under Sec. 47. The decree-holder appellant, however, has sought to save limitation by reason of an order dated 25th September, 1945, made by this High Court in civil Revision 150 of 1945. It appears that in a previous application for execution by sale of the mortgaged properties the judgment-debtors applied under Sec.11 of the Bihar Money Lenders Act for fixation of instalments for satisfaction of the decree. By his order dated 9th January, 1945, the learned Subordinate Judge refused to fix instalments. The judgment-debtors-moved this High Court in revision. On 25th September, 1945, this Court passed the following order: ".... By his order dated 9th January, 1945, the learned Subordinate Judge refused to fix instalments. The judgment-debtors-moved this High Court in revision. On 25th September, 1945, this Court passed the following order: ".... .we direct that the petitioner should be allowed to deposit the remaining decretal amount in two instalments, that is to say, he must deposit a sum of Rs 2,000.00 on or before the 20th of September, 1946, and the remaining decretal amount, together with interest and costs, on or before the 20th of September, 1947. If the first instalment is not paid, the decree-holder will be entitled to, execute her decree for the entire sum remaining unsatisfied." If the period of limitation is reckoned from the date of decree, that is, 20th July, 1941, the application for execution is prima facie barred by time. If, however, the computation has to be made front the dates fixed by the High Court for the payment of the balance of the decretal amount, that is, either from 20th September 1946, or 20th September, 1947, the application is out of the mischief of twelve years rule. 3. In the other Miscellaneous Appeal, namely, Miscellaneous Appeal 18 of 1955, the final mortgage decree for sale was made on 24th August, 1941. The last application for execution for satisfaction of the decree was made on 29th September 1954. As in the previous case, several proceedings in execution of the decree were taken from time to time which it is not relevant to mention here. If this application also is governed by twelve years rule of limitation, as provided in Sec. 48 of the Code, it is prima facie barred by time. As in the previous case, the decree-holder based his case on a subsequent compromise between him and the judgment-debtors for payment of the decree by instalments, and his case has been that this compromise provided a fresh starting point of limitation. It appears that in a previous application, for execution the judgment-debtors preferred an application under the Bihar Money Lenders Act for fixation of value of the property sought to be sold, and for instalment for payment of the decretal amount. This application was rejected by the learned Subordinate Judge, and they filed a revision application in the High Court, being Civil Revision 14 of 1948. This application was rejected by the learned Subordinate Judge, and they filed a revision application in the High Court, being Civil Revision 14 of 1948. Ultimately, the decree-holder and the judgment-debtors reached an agreement, and they filed a compromise petition in this High Court. On 12th September, 1951, the High Court accepted, the compromise petition and passed an order to the effect that the judgment-debtors should pay Rs. 25,000.00 on 11th December, 1951, and Rs. 15,000 on 11th January, 1952. The balance of the decretal amount was remitted. The last application for execution referred to above is within twelve years from the date of the order of the High Court, namely, 12th September, 1951. 4. The main question for determination in both these appeals is whether the applications of the appellant are barred under Sec. 48 of the Code as being more than twelve years from the dates of the respective final mortgage decrees for sale. The respondents urged that as between the dates of the decrees and the dates of the last applications for execution in both the cases more than twelve years had elapsed, under Sec. 48 of the Code there could be no further application. On the other hand, the contention of the decree-holder appellant is that though under Sec. 48 the applications are prima facie barred because the period of twelve years has run, it is saved by the orders of the High Court dated 26th September, 1945, in one case and dated 12th September, 1951, in the other case, by which the judgment-debtors were directed to satisfy the decrees in instalments, on the ground that those orders were within the meaning or Section 48(1) (b) subsequent orders directing payment of money. This section is as follows: "48(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from- (a) the date of the decree sought to be executed, or (b) where the decree or any subsequent order directs any payment o£ money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree (2)...." The determination of the question involved in these appeals depends upon the true scope and effect of the expression "subsequent order" in Clause (b) above. If the orders of the High Court in Civil Revisions are "subsequent orders" as envisaged therein, then, plainly enough, the applications for execution are in time. The judgment-debtors maintained that the subsequent order directing payment of money in Clause (b) of Sec. 48 means a subsequent order made by the Court which made the decree acting as that Court and not an order of a Court executing a decree. It will be observed that the orders of the High Court on which the decree-holder relies to save limitation were orders made in course of execution proceedings upon applications made under the Bihar Money Lenders Act. If this contention were to prevail, these orders having been made by the Court executing the decrees do not constitute subsequent orders, as contemplated by Sec. 48, Clause (b). On the other hand, the decree-holder urged that there was no justification for putting such a narrow construction upon the expression "subsequent order" and that the wording of Sec. 48 is comprehensive enough to embrace orders passed by a competent Court subsequent to the decrees under execution, even though the Court passing that order is not the Court which made the decree or is the Court executing the decree. The learned Subordinate Judge declined to yield to the contentions of the decree-holder and held that the orders passed by the High Court in course of the execution proceedings did not amount to "subsequent orders" as contemplated by Clause(b) aforesaid and did not, therefore, provide a fresh starting point of limitation and consequently the applications were barred by time. The learned Subordinate Judge declined to yield to the contentions of the decree-holder and held that the orders passed by the High Court in course of the execution proceedings did not amount to "subsequent orders" as contemplated by Clause(b) aforesaid and did not, therefore, provide a fresh starting point of limitation and consequently the applications were barred by time. It is against this order that the present appeals have been preferred. 5. The arguments canvassed in the Court below have been reiterated in this Court. The learned Government Advocate representing the decree-holder appellant contended that the view taken by the learned Subordinate Judge was erroneous and that on the true construction of Sec. 48 the subsequent order is necessarily an order made subsequent to the decree and this order may be made either in the suit in which the original decree was passed or in the execution proceedings. In support of his contention he relied upon the decisions of the various High Courts in D. S. Apte V/s. Tirmal Hanumant, AIR 1925 Bom 503, Hridoymohan Sanyal V/s. Khagendra Nath, ATR 1929 Cal 687, Kartic Chandra V/s. Bata Krishna; AIR 1938 Cal 25, Oudh Commercial Bank, Ltd., Fyzabad V/s. Bind Easni Kuer, AIR 1939 PC 80; Chhatra Pati Pertab Bahadur V/s. Hari Ram, AIR 1940 All 423, Jatindra Nath V/s. Heramba Chandra, AIR 1945 Cal 154, Meet Bismilla V/s. Jagannath, ILR 1947 Nag 25 : (AIR 1947 Nag 101) and Deorao Suryabhanji V/s. Ramchandra Amrutlal, AIR 1948 Nag 272. These decisions fully support his contention. On the other hand, Mr. Kedar Nath Varma appearing for the respondents maintained the contrary and referred to the decisions in Chandrika Prasad Singh V/s. Kesho Prasad Singh, AIR 1918 Pat 216, Gobardhan Prasad V/s. Bishunath Prasad, AIR 1921 Pat 340, Bishwanath Prasad V/s. Lachhmi Narain, AlR 1935 Pat 380, Nagendra Pratap Singh Deo V/s. Joharmal Padia, AIR 1950 Pat 491 , Gobardhan Das V/s. Dau Dayal, AIR 1932 All 273 (FB) and Kirtyanand Singh V/s. Prithi Chand LaL AIR 1933 PC 52. These decisions support the contrary view that the orders passed in the execution proceedings are not subsequent orders within the meaning of Sec. 48 (1) (b). It is evident that there are two lines of cases, one taking the broader view and the other a narrower view of the expression "subsequent order." It is difficult to reconcile these conflicting views. These decisions support the contrary view that the orders passed in the execution proceedings are not subsequent orders within the meaning of Sec. 48 (1) (b). It is evident that there are two lines of cases, one taking the broader view and the other a narrower view of the expression "subsequent order." It is difficult to reconcile these conflicting views. Having heard the able arguments advanced by both the sides, I think the contention raised by the learned Government Advocate is well-founded and must be accepted as correct. 6. On the plain language of Clause (b) of Sub-section (1) of Sec. 48, there is no sufficient reason for holding that the subsequent order must be an order made by the very Court which passed the original decree, nor is there any reason for restricting the subsequent order to an order made in the so itself in which the decree is made. There is no qualifying word or expression so as to exclude the order passed by the executing Court from the expression "subsequent order." In order to sustain the argument that the subsequent order means a subsequent order made by the Court which made the decree and acting as that Court and not an order of a Court executing the decree, one will necessarily have to import into clause (b) words which are not there, namely, any subsequent order "by the Court which passed the decree." In absence of some such qualifying words it is difficult to construe "subsequent order" to mean an order made by the Court which made the decree so as to exclude all such orders made in course of the execution proceedings. The cases which lay down the contrary principle do not take, sufficient account of the fact that such a construction would lead to an absurdity and introduce an anomaly in the different provisions of the Code. I would refer in this connection to the provisions of Rule 11 of Order XX of the Code. This rule provides for payment of the decree by instalments. Sub-rule (1) of Rule 11, empowers the Court to direct, at the time of passing the decree, that payment of the amount decreed shall be postponed or shall be made by instalments with or without interest notwithstanding anything contained in the contract under which the money is payable. This power, however, is exercisable only by the Court passing the decree. Sub-rule (1) of Rule 11, empowers the Court to direct, at the time of passing the decree, that payment of the amount decreed shall be postponed or shall be made by instalments with or without interest notwithstanding anything contained in the contract under which the money is payable. This power, however, is exercisable only by the Court passing the decree. Sub-rule (2) provides for payment of the decretal amount by instalments subsequent to the passing of the decree. Under this sub-rule an executing Court also may allow payment of the decree by instalments. It runs as follows : "After the passing of any such decree the Court may, on the application of the judgment-debtor and with the consent of the decree-holder, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor, or the taking of security from him or otherwise, as it thinks fit." It is manifest that at the time of passing the decree the Court has absolute discretion to direct payment of the decree by instalments. After the passing of the decree, however, the Court which passed the decree or the executing Court cannot order the payment of the decretal amount to be postponed or to be made in instalments unless the decree-holder gives his consent thereto. There is a further limitation that the application under Sub-rule (2) for postponement or payment in instalments of the decree amount should be made within six months of the decree under Article175, Schedule I of the Limitation Act. Nevertheless, the power is there, and it is conceivable that in appropriate cases the executing Court may with the consent of the decree-holder order payment of the decretal amount by instalments which may extend over several years, with the result that when twelve years had expired some of the instalments might still remain to be paid. Can it be said with any show of reason that the instalments falling due after the expiration of twelve years will not be recoverable and will be deemed to be barred under Sec. 48? I do not think the legislature intended any such contingency. Manifestly it will operate as a great hardship to the decree-holder, who; for no fault of his, will be deprived of his right to execute the decree. I do not think the legislature intended any such contingency. Manifestly it will operate as a great hardship to the decree-holder, who; for no fault of his, will be deprived of his right to execute the decree. In my opinion, such an interpretation will be vary unfair and unjust, more especially, when the judgment-debtors have taken the full benefit of such an order. Having regard to the provisions of Rule 11, it cannot be reasonably argued that the expression "subsequent order" excludes orders passed by the executing Court making the decree payable in instalments. If the construction suggested by the learned counsel for the judgment-debtors were to prevail, there would be apparent conflict between the different provisions of the Civil Procedure Code. While one provision permits of payment of the decree by instalments in more than twelve years, the other provision limits the satisfaction of the decree to twelve years only, with the result that the two provisions of the same statute are rendered mutually destructive. It is impossible to conceive that the legislature intended that one provision of the Code will nullify another provision. It is the duty of the Court to harmonise the apparent conflicting provisions of the same statute or two different statutes, unless the conflict is irreconcilable and to make such construction of a statute as will suppress the mischief and advance the remedy if this can be done without violence to the language of the section. I do not think that in the present instance the apparent conflict between these two provisions is irreconcilable. In my opinion, there is no conflict. The conflict arises only when extraneous words are imported in Clause(b) in order to give it a narrower meaning for which, as stated above, there is hardly any basis. The extended meaning of the expression "subsequent order" so as to comprehend order made subsequent to the decree either by the Court which passed the decree or the executing Court Prejudices none, rather helps to benefit both the creditor and the debtor and further advances the beneficial provisions of the enactment. If it were not so no decree-holder will ever consent to the granting of instalments for payment of decree in the executing Court which in the ultimate analysis may prove ruinous to many an impecunious debtor. If it were not so no decree-holder will ever consent to the granting of instalments for payment of decree in the executing Court which in the ultimate analysis may prove ruinous to many an impecunious debtor. For myself, I see nothing in Clause (b), to restrict the meaning of the expression "subsequent order" to the order made by the Court which passed the decree. 7. This question may be considered also from another point of view. Long after the enactment of the Code the Bihar Money Lenders (Regulation of Transactions) Act, 1939 (Bihar Act VII of 1939) was passed which received the assent of the Governor-General on 15-4-1939. Sections 11 and 12 of this Act empower even the executing Court to direct payment of amount due in respect of a loan or on mortgage by instalments. The limitation placed upon the power of the executing Court to grant instalments for payment of money without the consent of the decree-holder under Rule 11 of Order XX of the Code has been removed. Now, the executing Court has got absolute power to direct payment of decretal amount by instalments in appropriate cases even without the consent of the decree-holder. There is no limit on the number of instalments which can be allowed in a case, and it inevitably follows that in many cases some of the instalments may fall due after the expiration of twelve years from the date of the decree. Now, limitation of the subsequent order in Clause (b) of Sec. 48(1) of the Code to the order made by the Court which passed the decree will render the provisions of the Bihar Money Lenders Act absolutely nugatory. Notwithstanding the wide discretion vested in the executing Court for granting such instalments, as may be just and proper in any given case, the instalments must be confined to a period of twelve years only from the date of the decree. The legislature was naturally aware of the provisions contained in Sec. 48, and it would be absurd to suppose that the legislature took away by one hand what it gave by another to benefit the debtors. Such a construction will naturally bring out an extraordinary situation which might result in a creditor being deprived of his right to execute for the subsequent unpaid instalments for no fault of his. Such a construction will naturally bring out an extraordinary situation which might result in a creditor being deprived of his right to execute for the subsequent unpaid instalments for no fault of his. On a true and correct interpretation of Clause(b) of Sec. 48(1), I think "subsequent order" means order made by court of competent jurisdiction subsequent to the passing of the decree. This interpretation without any violence to the language of Clause (b) will include within the expression "subsequent order" order made by the executing Court also in execution proceeding or by a court in a subsequent suit dealing with the said decree. The view which I have just expressed is supported by the decisions of the different High Courts referred to by the learned Government Advocate. In the case of D. S. Apte, AIR 1925 Bom. 503, the Division Bench of the Bombay High Court held that the words "any subsequent order" mean any order made by a competent Court. It further laid down that an order made by a Court executing a decree allowing a judgment-debtor time to pay up the balance of the decretal money by instalments is a subsequent order within the meaning of Sec. 48 and gives a fresh period to the decree-holder to execute his decree. In the case of Jatindra Nath, AIR 1945 Cal. 154, the Calcutta High Court also interpreted the words "subsequent order" similarly and laid down that they were not restricted to the order of the Court which passed the decree but included order of the executing Court. It has further been laid down that the limitation for fresh execution application under Sec. 48(1) (b) would run from the date of default in the payment of any instalment. A similar view has been expressed by the Calcutta High Court in the other cases, namely, the cases of Hridoymhan Sanyal, AIR 1929 Cal. 687 and Kartic Chandra, AIR 1938 Cal. 25. In the case of Chhatra Pati Pertab Bahadur, AIR 1940 All. 423, a Bench of the Allahabad High Court has held that the period of twelve years could be computed from the date of default in payment of the instalments fixed by the executing Court. The same view has been taken by another Full Bench of that Court in the case of Mahendra Rao V/s. Bishambhar Nath, AIR 1940 All. 270. 423, a Bench of the Allahabad High Court has held that the period of twelve years could be computed from the date of default in payment of the instalments fixed by the executing Court. The same view has been taken by another Full Bench of that Court in the case of Mahendra Rao V/s. Bishambhar Nath, AIR 1940 All. 270. The Nagpur High Court has also expressed the view that "subsequent order," as envisaged by Sec. 48(1) (b) can be passed by both the original Court as well as the executing Court. (See the cases of Meet Bismilla, ILR (1947) Nag. 25: (AIR 1947 Nag. 101), and Deorao Suryabhanji, AIR 1948 Nag 272). These decisions are reinforced by the decision of their Lordships of the Privy Council in the case of Oudh Commercial Bank. Ltd., Fyzabad. AIR 1939 P.C. 80. In this case a final decree was passed in 1916 in a mortgage suit and was transferred to another Court for execution to which an application was made in 1917 for sale of all the mortgaged property. Owing to certain reasons, the proceedings were stayed, but were restored in 1922 on the application of the decree-holder and the judgment-debtors properties were sold. The sales were however cancelled on his agreeing to pay certain sums. The sums were paid and the executing Court consigned the execution case to records. Subsequently, an agreement was made giving time to the judgment-debtor to pay the amount due, it being provided that judgment-debtor should pay increased rate of interest. As a term of this agreement half of the properties were released from the mortgage. This agreement was not carried out and a final compromise was made in 1927 whereby the sum was to be paid by instalments and the proceedings for auction sale were to remain in abeyance in case the fixed instalments be paid regularly. In default the decree-holder was to resume sale proceedings. The executing Court sent the compromise to the Court which passed the decree and the latter Court recorded the compromise and the payments made under it. In 1930 however the judgment-debtor made default in the payment of instalments and the decree-holder applied on a tabular statement to transfer the decree to the transferee Court for execution. In 1931, the decree-holder applied to the latter Court for sale of the property which had not been released from mortgage. In 1930 however the judgment-debtor made default in the payment of instalments and the decree-holder applied on a tabular statement to transfer the decree to the transferee Court for execution. In 1931, the decree-holder applied to the latter Court for sale of the property which had not been released from mortgage. An argument was advanced, in this case which was upheld by the Chief Court of Oudh that the executing Court is wholly without jurisdiction to record an adjustment of the decree between the judgment-debtor and the decree-holder so as to vary the decree. This observation was upset by their Lordships of the Privy Council who observed as follows: "The authority relied upon by the learned Judges of the Chief Court is ILR 54 All. 573: (AIR 1932 All. 273) (FB), and the principle invoked is that the original decree cannot be altered or varied by the parties even with the sanction of the Court and that in any case mere consent of the parties cannot confer such a jurisdiction on the executing Court. This line of reasoning is not without support from other decisions of Indian High Courts though authority and practice to the contrary is also to be found. On this difficult and important question, their Lordships are not in agreement with the view taken by the Chief Court. They do not consider that it takes sufficient account of the facts that the Code contains no general restriction of the parties liberty of contract with reference to their rights and obligations under the decree and that if they do contract upon terms which have reference to and affect the execution, discharge or satisfaction of the decree, the provisions of Sec. 47 involve that questions relating to such terms may fall to be determined by the executing Court...... They are not prepared to regard a fair and ordinary bargain for time in consideration of a reasonable rate of interest as an attempt to give jurisdiction to a Court to amend or vary the decree. Such a bargain has its effect upon the parties rights under the decree and the executing Court under Sec. 47 has jurisdiction to ascertain its legal effect and to order accordingly. Such a bargain has its effect upon the parties rights under the decree and the executing Court under Sec. 47 has jurisdiction to ascertain its legal effect and to order accordingly. It may or may not be that any and every bargain which would interfere with the right of the decree-holder to have execution according to the tenor of the decree comes under the term adjustment : on that their Lordships do not pronounce. Now will they here consider what consequences would flow from a finding that a particular bargain for time was not an adjustment In the absence of express statutory authority it is not possible in their Lordships view to regard Order 20, Rule 10, as excluding any possibility of the parties coming to a valid agreement for time to which the Court under Sec. 47 will have regard. The rule does not apply to all decrees: but only to decrees for the payment of money in so far as they are of that character. The purpose of providing a limitation of six months for such applications to the Court which passed the decree is not altogether plain and the objects may be more than one: but this provision like the rule itself, affords no sufficient ground for holding that the Code makes parties wholly incompetent to come to an arrangement for time enforceable in execution proceedings. Such bargains may take different forms and it is not possible to prejudge the individual case. If it appears to the Court, acting under Sec. 47, that the true effect of the agreement was to discharge the decree forthwith in consideration of certain promises by the debtor, then no doubt the Court will not have occasion to enforce the agreement in execution proceedings, but will leave the creditor to bring a separate suit upon the contract. If on the other hand, the agreement is intended to govern the liability of the debtor under the decree and to have effect upon the time or manner of its enforcement, it is a matter to be dealt with under Sec. 47. In such a case to say that the creditor may perhaps have a separate suit is to misread the Code, which by requiring all such matters to be dealt with in execution discloses a broader view of the scope and functions of an executing Court. In such a case to say that the creditor may perhaps have a separate suit is to misread the Code, which by requiring all such matters to be dealt with in execution discloses a broader view of the scope and functions of an executing Court. Their Lordships are in agreement with the statement in ILR 54 All 573 at p. 585 : (AIR 1932 Alt 273 at p. 279) (FB) that in numerous cases a compromise between the decree-holder and the judgment-debtor entered into in the course of execution proceedings, which was duly recorded, has been enforced, and they are not of opinion that the practice, which is both widespread and inveterate, is contrary to the Code. They are of opinion that in the present case the compromise can and should be enforced in these execution proceedings." In my opinion, this authoritative pronouncement of the Privy Council clinches the entire issue. The principles laid down by their Lordships of the Privy Council are three-fold, first that subsequent to the passing of the decree the judgment-creditor and the judgment-debtor may reach an agreement and adjust the payment of the decree in such manner as they like, second, that if and when such arrangement is made, it is legally valid and can be enforced in an execution proceeding, and, third, any dispute concerning such arrangement may be investigated by the executing Court under the provisions of sec. 47 of the Code. When the adjustment is legal, as laid down by their Lordships of the Privy Council, and this adjustment can be enforced by the executing Court, it inevitably follows that the order of adjustment must be regarded as a subsequent order within the meaning of Clause (b) of Sec. 48(1) so as to give the decree-holder a fresh period of limitation from the date of default of payment of the decree according to the adjustment. This, in my opinion, seems to be the correct legal position. 8. I now proceed to consider the cases referred to by the learned counsel for the judgment-debtors which lay down the contrary proposition of law. In the case of Chandrika Prasad Singh, AIR 1918 Pal 216, their Lordships of the Patna High Court held that a Court has no jurisdiction to accept any compromise decree in substitution for the decree either of the High Court or of its own Court previously passed. In the case of Chandrika Prasad Singh, AIR 1918 Pal 216, their Lordships of the Patna High Court held that a Court has no jurisdiction to accept any compromise decree in substitution for the decree either of the High Court or of its own Court previously passed. In the case ofGobardhan Prasad, AIR 1921 Pat 340, a Division Bench of this Court has laid down that subsequent order directing payment in Sec. 48, Clause (b) means a subsequent order made by the Court which made the decree acting as that Court and not an order of a Court executing a decree. The decision in the case of Rishwanath Prasad, AIR 1935 Pat 380 is rested upon the principle enunciated in the case of Gobardhan Prasad, AIR 1921 Pat 340 aforesaid and does not lay down any new principle of law. The Full Bench of the Allahabad High Court in the case of Gobardhan Das, AIR 1932 All 273 has laid down that an executing court has no power to alter or vary the decree under execution and substitute a new decree for it, and where the compromise arrived at between the decree-holder and judgment-debtor fixes new dates of payment or delivery, it alters the time of satisfaction and therefore varies the decree. It was further laid down that it is the duty of the execution Court not to entertain an application embodying such a compromise made after the expiration of six months of the decree, even though the decree-holder is agreeable to it. It has further laid down that an execution Court as such cannot make an order which will operate as a subsequent order directing the payment of the decretal amount on such a date. The principles invoked in these cases are twofold, first, that subsequent order means the order passed by the Court which made the decree and excludes the order passed by the executing Court, and, second, that the executing Court has no jurisdiction to vary the decree and therefore the compromise entered into between the judgment-debtor and the decree-holder providing for payment of the decree in instalments is illegal and not maintainable. Both these principles are contrary to the principles laid down by the Privy Council in the case of Oudh Commercial Bank Ltd., Fyzabad. Both these principles are contrary to the principles laid down by the Privy Council in the case of Oudh Commercial Bank Ltd., Fyzabad. AIR 1939 PC 80 referred to above and must, therefore, be deemed to have been overruled by the decision of the Privy Council. In face of this decision of the Privy Council they have no binding force and cannot be accepted as correct. As a matter of fact, the aforesaid Full Bench decision of the Allahabad High Court was set aside by another Full Bench of the same Court in AIR 1940 AH 270 on the strength of the aforesaid Privy Council decision. I would refer in this connection particularly to the decision of the Privy Council in AIR 1933 PC 52 which was strongly relied upon by the learned counsel for the judgment-debtors respondents. In this case their Lordships of the Privy Council have laid down that in Sec. 48(1)(b) the subsequent order must be an order in the suit in which the decree is made and an order which directs payment of money by the debtor or the surety in respect of the judgment debt and that any order made in a separate suit is not such an order, as is contemplated by Section 48(1)(b). Prima facie, the ratio of this decision supports the contention of learned counsel, but on a closet examination it appears that on facts this case ft distinguishable. The question of validity of an order of an executing Court directing payment of decree money in instalments was not involved. Their Lordships of the Privy Council were dealing with an order which had been made in a different suit and it was from that point of view that their Lordships held that on the true construction of the section the subsequent order must be an order made in the suit in which the decree was made. It will appear that the suit in which this order was made was a suit relating to a different subject-matter altogether, and the validity of the decree or otherwise was not involved in that suit In such a situation the order made in a separate suit having nothing to do with the decree cannot be regarded as a subsequent order within the meaning of Sec. 48(1)(b) of the Code. I think, this decision also does not help the judgment-debtors. 9. I think, this decision also does not help the judgment-debtors. 9. There is left for consideration only one decision referred to by the learned counsel for the respondents, that is to say, the case of Nagendra Pratap Singh, AIR 1950 Pat 491 . The decision in that case has absolutely no bearing to the facts of the present case. In that case there were two decrees, one a mortgage decree and the other a personal decree under Order XXXIV, Rule 6 of the Code, and it was held that the decree-holder was not bound to execute the personal decree within twelve years of the date of the final decree in the mortgage suit. The decision is neither here nor there. 10. It is manifest that the contention of the learned counsel for the respondents is not well-founded and cannot be accepted as correct. In my considered judgment the expression "subsequent order in Clause (b) of Section 48(1) means an order made by a Court of competent jurisdiction subsequent to the passing of the decree, either in the suit itself or in the execution proceeding, and further that the executing Court is competent to entertain any adjustment of the decree arrived at between the judgment-debtor and the decree-holder and further to grant instalments for payment of the decree, and where such instalments are granted either by the executing Court itself or by virtue of the adjustment so reached, the period of twelve years prescribed by Sec. 48 must be computed from the date of default in payment of each instalment. Considered from this point of view the applications for execution in these appeals were well within time. 11. In the result, the appeals are allowed with costs throughout, and the order of the learned Subordinate Judge dated 19th January, 1955, is set aside. The execution will now proceed in the usual manner. V.Ramaswami, J. 12 I agree.