JUDGMENT B. Mukerji, J. - This is an execution First Appeal arising out of an execution initiated in the court of the Civil Judge, Allahabad. The execution matter was numbered as 44 of 1958. The decree-holder who applied for execution was the appellant before us, namely, Sri Surendra Narain Agarwala. The judgment-debtors against whom execution was sought, were Sri Om Narain Agarwala, Sri Hari Narain Agarwala, Sri Badri Vishal Agarwala, Smt. Uma Devi and Smt. Rama Devi. The first three were the sons of the late Sri Kartar Narain Agarwala while the next two were the daughters of the said Sri Kartar Narain Agarwala. The dispute out of which this Execution First Appeal has arisen was between an uncle, the decree-holder, on the one hand and his three nephews and two nieces on the other hand. 2. One Sri Girdharilal Agarwala, who was a practitioner of this Court, had two sons, Sri Kartar Narain Agarwala and Sri Surendra Narain Agarwala. The respondents are the progeny of the late Sri Kartar Narain Agarwala. Unfortunately, during the lifetime of Sri Girdharilal Agarwala, disputes arose between him and his sons which were settled by an arbitration award made by two members of the same community to which the parties belonged, namely, Shri Sridhar Agarwala and Sri Piareylal Agarwala. The award was given on the 10th of August, 1943. There were some objections to the award but fortunately the parties came to a settlement in regard to their dispute centring round the award and the award was on the consent of the parties slightly modified on the 14th of October, 1943, and this modified award was made a rule of the Court on the 16th of May, 1944. 3. Sri Girdharilal Agarwala died on the 30th of July, 1955 and Sri Kartar Narain Agarwala died on the 15th of October, 1956, and the question which has arisen for our determination arose out of one of the provisions which was incorporated in the decree dated the 14th of May, 1944. The relevant provision was in these words:- "After Lala Girdhari Lal's death, Kartar Narain and his branch shall become the full owner of bungalow No. 18, Lowther Road, Allahabad as well and shall pay to Surendra Narain and his branch Rs. The relevant provision was in these words:- "After Lala Girdhari Lal's death, Kartar Narain and his branch shall become the full owner of bungalow No. 18, Lowther Road, Allahabad as well and shall pay to Surendra Narain and his branch Rs. 12,500 (Twelve thousand and five hundred rupees) within two years of such events with forty rupees per month so long as the money is not paid, the maximum period being of two years." 4. As we have pointed out Sri Girdhari Lal Agarwala died on the 30th of July, 1955, and Sri Kartar Narain Agarwala died on the 15th of October, 1956, i.e., before two years had expired from the date of the death of Sri Girdhari Lal Agarwala. Sri Surendra Narain Agarwala, according to his contention, did not receive the sum of Rs. 12,500 plus Rs. 40 per month as provided for in that clause of the decree which we have already quoted from Sri Kartar Narain Agarwala or from his heirs within the time within which such payment had to be made and therefore Sri Surendra Narain Agarwala put in an application for execution on the 24th of July, 1958, in the Court of the Civil Judge, Allahabad. Two objections were preferred to this execution case. We, however, are concerned with only one appeal which has been made to this Court by Sri Surendra Narain Agarwala, the decree-holder against the decision of the learned Civil Judge holding that the decree which was sought to be executed by Sri Surendra Narain Agarwala on the 24th of July, 1958, could not be executed inasmuch as, the decree in his favour (the relevant portion of which we have already quoted) was not an executable decree: The sole question, therefore, that fell for determination was whether the decree which was made on the 16th of May, 1944, and the relevant portion of which has been quoted by us above was an executable decree or it was merely a declaratory decree necessitating the filing of a suit and obtaining a decree which could be an executable decree. 5. 5. Looking back to the relevant portion of the decree quoted above we find that there are more than two uncertainties visualised therein; the point of time at which the right of Sri Kartar Narain Agarwala to become a full owner of bungalow No. 18, Lowther Road, would arise and also there was uncertainty as to the sum amounting to a few thousands to which Sri Kartar Narain Agarwala would be liable. In short under the terms of the decree quoted above there was no present right in Sri Surendra Narain Agarwala to claim Rs. 12,500 from Sri Kartar Narain Agarwala. Further, there was no determination of the consolidated sum which could have been claimed by Sri Surendra Narain Agarwala on the happening of a certain contingency, namely, the death of Sri Girdhari Lal Agarwala and the placing of the property in respect of which the payment had to be made in Sri Kartar Narain Agarwala. 6. A decree in order to be an executable decree has to be a final determination of the rights of the parties at the date the decree is made. It is, however sometimes. because of convenience, that parties are given a sort of a contingent decree upon a set of facts which are yet to arise and sometimes a declaration of rights of a party, without any reference to its enforceability is made by a Court, but the fact that such things are done, and can properly be done by Courts, does not make the formal adjudication by which this is done a decree partaking the nature of an executable decree. Such determinations are merely declaratory judgments or declaratory decrees and the consequences which follow therefrom, have before they can be enforced in execution got to be finalised or given the formal shape of a decree which would possess all the necessary elements of an executable decree, not otherwise. We need look to only one case which would support the view which we have just expressed, namely, the case of Khalli Rath v. Ramchandra, A.I.R. 1953 Orissa 74. The above appeal had arisen out of execution proceedings which had been initiated in respect of a decree which was made in a suit for possession. We need look to only one case which would support the view which we have just expressed, namely, the case of Khalli Rath v. Ramchandra, A.I.R. 1953 Orissa 74. The above appeal had arisen out of execution proceedings which had been initiated in respect of a decree which was made in a suit for possession. The appellant in that case was the defendant in a suit which had been brought by the respondent for his eviction from a house belonging to the respondent and for the recovery of arrears of rent. There was a compromise whereby it was agreed between the parties that the appellant would pay rent at the rate of Rs. 5 per month for one year, namely, till 31st of March, 1947, as tenant and at the end of the year he would vacate the house without notice. On the date of the compromise, namely. on the 21st of March, 1946, a decree was passed in terms of the above compromise. The appellant did not vacate the house as stipulated and the respondent, therefore, started execution proceedings against him on the 17th of May, 1947. The question that fell for determination in that suit, therefore, was whether the decree which was made on a compromise was an executable decree or not. The learned Judges of the Orissa High Court held that the decree under those circumstances could not be held to be an executable decree even though the suit in that case had been for possession. The case before us was a stronger case in a sense for holding that the decree was not an executable decree and we hold accordingly. The learned Judge, therefore, was right in the view he took. 7. Mr. S.B.L. Gaur appearing on behalf of the appellant made an application to us at the hearing of the appeal with a prayer that the proceedings out of which this appeal has arisen may be now treated as a regular suit and the appellant be granted the relief to which he was entitled under the law. The aforementioned application was made, obviously, under the terms of Section 47 (2), C.P.C. That sub-section is in these words: "The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of additional court-fees." Mr. The aforementioned application was made, obviously, under the terms of Section 47 (2), C.P.C. That sub-section is in these words: "The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of additional court-fees." Mr. Gaur's contention is that he had applied for execution well within time, when relief could be sought against the judgment-debtors either by way of execution or by way of a regular suit, so that there could be no question of any limitation arising in this case because the point of time at which limitation has to be looked at is not the point of time at which a prayer is made to treat the application as a suit or vice versa the point of time has to be, it is contended and we agree with that contention, the point at which the application or the suit has actually been filed, for the relevant word of the statute is not "convert" a proceeding into a suit or a suit into a proceeding but the word is to "treat" a proceeding as a suit or a suit as a proceeding. There could be no question of jurisdiction because the execution had been initiated in the Court of the Civil Judge and it would be the Civil Judge who would have cognizance of the suit when the execution application was converted into a suit. 8. Mr. Shanti Bhushan appearing on behalf of the respondents very fairly conceded that the application could be treated as a suit because there could be really no valid challenge on the ground of either limitation or jurisdiction but what he contended was that this was not a fit case in which this Court should, at the appellate stage, exercise its discretion in permitting a conversion of the application into a suit and sending it back to the Court below for trial on the merits. We have been unable to accept this contention of Mr. Shanti Bhushan for we find that the dispute was between members of the same family and we further find that if we did not permit the execution application to be treated as a suit, then a fresh suit today would be barred by limitation which would, under the circumstances very unjust to the appellant. Shanti Bhushan for we find that the dispute was between members of the same family and we further find that if we did not permit the execution application to be treated as a suit, then a fresh suit today would be barred by limitation which would, under the circumstances very unjust to the appellant. In Daulat Singh v. Raja Ramji, AIR 1926 Allahabad 387 : 24 ALJ 379 a Bench of this Court held that it was open to the appellate Court to exercise the power of converting an execution application into a suit even at the appellate stage. The same view has been taken by the Lahore High Court in Sant Lal v. Ramaya Rama, AIR 1938 Lahore 177. It is interesting also to notice in this connection that their Lordships of the Supreme Court in the case of Merla Ramanna v. Nallaparaju, A.I.R. 1956 SC 87 did, at the Supreme Court stage, act under the provisions of Sec. 47(2), C.P.C. 9. For the reasons given above we convert the execution application into a suit and direct that this case now be sent down to the Court of the Civil Judge with a direction that he should register this case as a suit and should in the first instance call upon the plaintiff, who is the decree-holder here, to make good any deficiency in court-fees that there may be and he shall thereafter try the suit in accordance with, law Costs of this appeal would be costs in the suit.