Rabindra Narain Lall v. Nirmala Sinha — 1977 DIGILAW 94 (PAT)

Judgment B.D.SINGH, J. 1. This appeal by Sri Rabindra Narain Lall under S. 47 of the Civil P. C (hereinafter referred as the Code) is directed against the order dated 30-6-1973 passed in Miscellaneous Case No. 7 of 1974 arising out of Execution Case No. 2 of 1973 of a mortgage decree in favour of the respondents who are decree-holders. 2. The appellant is one of the judgment debtors. The relationship of appellant and the respondents would be apparent from the following genealogical table : 3. On 21st of Sept. 1955 Aditya Lall executed a mortgage for conditional sale in respect of his residential house at Kadam Kuan, Mohalla Kadam Kuan in the town of Patna in favour of respondents 1 and 2, but possession of the house was not given to the mortgagees. Six years was the time limit of the payment of principal amount of Rs. 25,000.00 with interest at 4«% from the date of the advance to the date of the payment Shri Aditya Narain Lall died on 25th of Sept. 1959. Thereafter respondents 1 and 2 instituted a mortgage suit No. 97 of 1974 before the Additional Subordinate Judge II Patna, claiming following reliefs :- i) That a preliminary mortgage decree for a sum of Rs. 23,416.33 paise be passed in favour of the plaintiff and against the defendants and the defendants be directed to pay the said amount to the plaintiffs by an appointed date to be fixed by the Court and if the defendants fail to pay the same, a decree for foreclosure in respect of the 2/3rd share of the property mentioned in para 2 Cl. (vi) of the plaint be passed in favour of the plaintiffs and delivery of possession over the said shares be given to the plaintiffs through the process of the Court by dispossessing the defendants from the same. ii) That costs of the suit with interest pendente lite and future interest be awarded to the plaintiffs against the defendants. iii) That such other relief or reliefs to which the plaintiffs be deemed entitled in the eye of law, be also granted in favour of the plaintiffs against the defendants. Account of claim Proportionate share of the defendants in the mortgage debt ...... ... Rs. 16666.33 N. P. Interest from 21-9-1955 to date Rs. 4«% per annum... ... ...... ... Rs. 6750.00 N. P. Grand Total Rs. Account of claim Proportionate share of the defendants in the mortgage debt ...... ... Rs. 16666.33 N. P. Interest from 21-9-1955 to date Rs. 4«% per annum... ... ...... ... Rs. 6750.00 N. P. Grand Total Rs. 23416.33 N. P. 4. During the pendency of the suit plaintiffs 1 and 2, namely respondents 1 and 2 entered into a compromise with defendant No. 2 on the 23rd Jan. 1970. The relevant portion of the said compromise reads thus : "Through the intervention of friends and common relatives, the parties have agreed to compromise the above suit, irrespective of their statements in the pleadings, on the terms mentioned hereunder :- 1. That the plaintiffs claim is admitted. 2. That it has been agreed between the parties that defendant no. 2 Shri Rabindra Narayan Lal, alone, will pay and be liable for the claims of the plaintiffs in the suit and will pay a consolidated amount of Rs. 36,000.00 (Rs. Thirty six thousand only) to the plaintiffs in full satisfaction of their claims including principal, interest, cost of the suit; the other defendants are hereby exonerated from all their liabilities. 3. That the defendant no. 2 Shri Rabindra Narayan Lall has paid to the plaintiffs towards part satisfaction of the aforesaid amount, the sum of Rs. 13,000.00 through a Bank draft No. 124338/208 dated 22-1-1970 drawn on the Allahabad Bank, Limited Patna University Branch, Patna 4 in the name of plaintiff No. 1, Shrimati Nirmala Sinha by way of first instalment and the remaining sum of Rs. 23,000.00 shall be paid to the plaintiffs within 18 months from this date and the payment of the said remaining sum of Rs. 23,000.00 shall be made in three equal instalments of Rs. 7667/-payable every six months and in default of payment of the amount of Rs. 15334/-(i. e. two instalments) by the end of one year interest calculated at 6% per annum shall be payable on the amount of the two instalments then due by the defendant No. 2. 4. That in consideration of the fact that defendant No. 2 has alone agreed to pay the entire dues of the plaintiffs, the parties have further agreed that the properties in suit shall belong and vest exclusively in defendant No. 2, Shri Rabindra Narayan Lal. 4. That in consideration of the fact that defendant No. 2 has alone agreed to pay the entire dues of the plaintiffs, the parties have further agreed that the properties in suit shall belong and vest exclusively in defendant No. 2, Shri Rabindra Narayan Lal. The other parties to the suit shall have no right, title or interest, whatsoever, in the said suit property except defendant No. 1. Srimati Kamla Devi to the extent of 1/4 (one fourth) life interest in the said holding in suit and it has been further agreed that the defendant No. 1 Srimati Kamla Devi shall not be entitled to alienate or encumber the said interest in any manner whatsoever. She however, is allowed to induct tenants on month to month tenancy after the entire decree money is satisfied and if the defendant No. 1 Srimati Kamala Devi in contravention of the terms of the compromise, alienates or encumbers the said property the same shall be void and shall not be binding on defendant No. 2. Sri Rabindra Narayan Lal and on her death the entire property in suit shall be exclusively possessed by defendant No. 2 here in his own right. 5. That the defendants Nos. 3 to 6 and the plaintiffs have, in recognition of the terms of the compromise, agreed to execute a separate registered deed of relinquishment in respect of their interest in the suit property only after the entire amount is satisfied to a paisa in the manner as indicated in para. No. 3. 6. That it has been further agreed and stipulated in between the parties that the period of 16 months (commencing from today) fixed for payment of the balance amount of Rs. 23,000.00 shall in no case and circumstance be relaxable and further that in case defendant No. 2 fails to Pay the entire balance amount of Rs. No. 3. 6. That it has been further agreed and stipulated in between the parties that the period of 16 months (commencing from today) fixed for payment of the balance amount of Rs. 23,000.00 shall in no case and circumstance be relaxable and further that in case defendant No. 2 fails to Pay the entire balance amount of Rs. 23,000.00 in instalments as agreed to above within the stipulated period of 18 months, then this compromise shall automatically become null, void, inoperative and not binding as if it had never been entered into and the plaintiffs shall then be entitled to be awarded a decree for the entire claim as has been laid through the suit besides all the other reliefs as sought for, including the right of the plaintiffs for their share in the property in suit; only that an adjustment shall be made of the sum of Rs. 13,000/-together with the instalment money or moneys, if any, that happens to be paid." 5. On the basis of the said compromise between the parties a preliminary decree in the original suit was passed on the 15th of July, 1971 in terms of the said compromise, which formed part of the decree, as prayed for by the parties. The appellant had paid on the date of compromise to respondents 1 and 2 Rs. 13,000.00 through a Bank draft dated 22nd of January, 1970, and according to the terms of the compromise he had to liquidate the balance of the dues as mentioned in para. 3 of the compromise petition within 18 months in three equal instalments of Rs. 7,667/- payable every six months. The appellant, however, defaulted in paying the instalments in terms of the compromise. Therefore, respondents 1 and 2 filed petition dated 2nd Dec., 1971 for preparation of final decree in the said title suit for foreclosure in respect of the house in suit and for cost of the suit with interest pendente lite till the date of the final decree which was to be adjusted towards Rs. 13,000.00 the amount received from the appellant i. e. defendant No. 2. On the said petition the learned Subordinate Judge in the said suit passed an order dated 21st Sept., 1972. In the order inter alia the plaintiffs, namely, respondents 1 and 2 were found to be entitled to get possession of the mortgaged property in the suit. 13,000.00 the amount received from the appellant i. e. defendant No. 2. On the said petition the learned Subordinate Judge in the said suit passed an order dated 21st Sept., 1972. In the order inter alia the plaintiffs, namely, respondents 1 and 2 were found to be entitled to get possession of the mortgaged property in the suit. As regards the adjustment of Rs. 13,000.00 that had been paid by Rabindra Narain Lal, namely the appellant, the plaintiffs were held liable to pay back the same to him. Therefore, the plaintiffs were directed to deposit the aforesaid amount of Rs. 13,000.00 in court to be paid to Rabindra Narain Lal by the 20th Nov., 1972 and only after the deposit of the said amount of Rupees 13,000.00 they would be entitled to get possession of the mortgaged property and necessary direction in that connection would be issued to the defendant namely, the appellant, for delivering possession of the mortgaged property. It was ordered that a decree be prepared accordingly. Against the said order the appellant filed Civil Revision No. 413 of 1973 in this Court. The Stamp Reporter reported that civil revision would not lie against the said order. This court by order dated 15th of Nov., 1973 directed the appellant to convert the said civil revision into a first appeal, subject to the limitation. By the same order appellant was also permitted to file limitation petition along with the copy of the decree. No such petition was filed by the appellant, and, thereafter, the civil revision stood dismissed for default. Subsequently, the appellant filed an application for restoration in M. J. C. No. 119 of 1974 on the 4th of July, 1974, which was also dismissed on merit on 17-11-1975. As ordered by the learned Subordinate Judge in his order dated 21st of Sept., 1972 a final decree was prepared on 30th of March, 1973. Relevant portion of the final decree reads thus :- "1. Upon reading the preliminary decree passed in this suit on the 27th day of Aug., 1971 and further orders (if any) dated the 21st day of Sept. 1972 and the application of the plaintiff, dated the 7th day of Dec. Relevant portion of the final decree reads thus :- "1. Upon reading the preliminary decree passed in this suit on the 27th day of Aug., 1971 and further orders (if any) dated the 21st day of Sept. 1972 and the application of the plaintiff, dated the 7th day of Dec. 1971 for a final decree and after hearing the parties and it appearing that the payment directed by the said decree and order has not been made by the defendant or any person on his behalf or any other person entitled to redeem the said mortgage. It is hereby ordered and decreed that the defendant and all persons claiming through or under him be and they are hereby absolutely debarred and foreclosed of and from all right of redemption of and in the property in the aforesaid preliminary decree mentioned (and if the defendant be in possession of the said mortgaged property) that the defendant shall deliver to the plaintiff quiet and peaceful possession of the said mortgaged property. And further order the plaintiffs are directed to deposit the aforesaid amount of Rs. 13,000.00 in court to be paid to Rabindra Narain Lall by the 20th Nov. 1972 and only after the deposit of the said amount of Rs. 13,000.00 they will be entitled to get possession of the mortgaged property and necessary direction in this connection will be issued to the defendants for delivering possession of the mortgaged property. 2. And it is hereby further declared that the whole of the liability whatsoever of the defendant up to this day arising from the said mortgage mentioned in the plaint or from this suit is hereby discharged and extinguished." 6. As ordered in the decree respondents 1 and 2 deposited the said amount of Rs. 13,000.00 which was subsequently withdrawn by the appellant. Respondents 1 and 2, namely, the decree-holders filed execution petition for executing the final decree under Execution Case No. 2 of 1973. As ordered in the decree respondents 1 and 2 deposited the said amount of Rs. 13,000.00 which was subsequently withdrawn by the appellant. Respondents 1 and 2, namely, the decree-holders filed execution petition for executing the final decree under Execution Case No. 2 of 1973. The appellant filed objection petition dated the 13th of July, 1974, in the said execution case before the executing court which was converted into Miscellaneous Case No. 7 of 1974, where inter alia the appellant pleaded that neither the mortgage deed was produced in the suit, nor any evidence was adduced, and the final decree was passed for the entire amount claimed in the suit plus cost of the suit pendente lite interest @ 4«% per annum, and the right of redemption and the mortgage was foreclosed on the bare petition of the plaintiffs decree-holders, and that the final decree was not warranted by O. 34, R. 3 (2) of the Civil P. C. He further pleaded that in the absence of any preliminary decree under O. 34 R. 2 of the Code there was no basis for the final decree under execution and, thus, according to him the said final decree was not executable. The learned Subordinate Judge by the impugned order dismissed the objection petition of the appellant in the said miscellaneous case holding inter alia that the final decree was executable and the execution case by the decree-holders was maintainable. Hence, this appeal by the judgment-debtor. 7. On the submissions of the learned counsel for the parties the following points arise for consideration in this appeal :- (i) Whether the executing court had jurisdiction to entertain the application of the judgment-debtor-appellant under S. 47 of the Code and to go behind the decree and whether the miscellaneous appeal filed by the judgment-debtor in this court under S. 47 of the Code is maintainable ? (ii) Whether according to the terms contained in the compromise decree the plaintiff-respondents could have obtained final decree against the defendant-appellant without taking recourse to the provisions contained under O. 34 R. 2 of the Code ? It will be convenient to deal with point No. (i) first. Mr. Balbhadra Prasad Singh, learned Counsel appearing on behalf of the appellant, in this connection, drew our attention to the provisions contained under S. 47 of the Code. It will be convenient to deal with point No. (i) first. Mr. Balbhadra Prasad Singh, learned Counsel appearing on behalf of the appellant, in this connection, drew our attention to the provisions contained under S. 47 of the Code. The relevant portion of the said section reads thus :- "(1) 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." He submitted that a question where a decree is a nullity or not in existence by reason of the fact that it was passed by a court without jurisdiction or that it was passed against a dead person was a question which could be entertained in execution and if it was proved that the decree was a nullity it could not be executed. Similarly, an executing court could order whether the decree to be executed was a subsisting and operative decree capable of execution. He invited our attention to para 6 of the compromise petition which has been quoted above, and also to the preliminary decree which was prepared on the basis of the compromise petition. He emphasised that on the contingencies mentioned in para 6, since the defendant No. 2 failed to pay off the entire balance amount of Rs. 23,000.00 in instalments, within the stipulated period of 18 months the compromise automatically became null and void and inoperative and not binding, as if it had never been entered into. He submitted that those words automatically become null and void; inoperative and not binding as if it had never been entered into are of great significance. The parties themselves with their open minds, agreed to treat the terms of compromise petition, and the preliminary decree that would follow, to be null and void and inoperative on the default having been committed by defendant No. 2, namely, the appellant." Therefore, he submitted that the executing court while executing the final decree at the instance of the decree-holder had ample jurisdiction under S. 47 of the Code to go behind the said decree and find out whether it was operative or null and void or whether it was subsisting. In order to find support to his contention he has relied upon Hira Lal Patni V/s. Kali Nath, AIR 1962 SC 199 and he referred to para 4 at page 200 where it was observed :- ".........The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it...... 8. On the basis of, the above observations learned counsel submitted that circumstances under which executing court can go behind a decree are not exhaustive. It depends upon the facts of each case, as it was observed above, or some such other ground which could have the effect of rendering the court entirely lacking, in jurisdiction in respect of the subject-matter of the suit. In the instant case the parties themselves while entering into the compromise have made it clear that on certain contingencies the terms of the compromise would become inoperative and would become null and void as if it had never been entered into. Learned counsel also referred to Kumara Pillai Velayudhan Piliai V/s. Rayappan Nadar Asiradom Nadar, AIR 1955 TC 112. In that case the plaintiff had brought a suit on a hypothecation bond executed by the first defendant impleading therein defendants 2 and 3 as subsequent encumbrancers. The suit was decreed ex parte against the first defendant for a particular amount on the basis that the principal amount should bear interest at 12 per cent per annum from the date of suit (8-12-1104) to date of decree i.e. 23-3-1105. Subsequently the ex parte decree was set aside at the instance of defendant No. 2, without any notice to defendant 1 and the suit was restored to the file. No notice of the subsequent proceedings in the suit was also given to defendant No. 1. Subsequently the ex parte decree was set aside at the instance of defendant No. 2, without any notice to defendant 1 and the suit was restored to the file. No notice of the subsequent proceedings in the suit was also given to defendant No. 1. The suit was then decreed on 9-12-1119 against defendant 1 for much larger amount due to inclusion of interest till the date of latter decree and the prior charge of defendant No. 2 was declared. In execution the question was whether the first defendant was bound by the first decree or the second decree. It was held, by Menon J. that the second decree passed in the case against the first defendant on 9-12-1119 was a nullity so far as he was concerned and that the amount he was liable to pay was only the one payable under the first decree dated 23-3-1105. Since notice of the subsequent proceedings was not given to him he had no opportunity to contest the claim for interest at 12 per cent, per annum from 23-3-1155 to 9-12-1119. He was not legally before the court when the second decree was passed. The Court had, therefore, no jurisdiction to give a decision against him. It would be opposed to all principles of natural justice to hold that a person would be bound by a decision given against him in proceedings of which he had no notice. Therefore, learned counsel submitted that the present appeal filed against the impugned order by the judgment-debtor under S. 47 of the Code is also maintainable. 9. In my opinion, the submissions of the learned counsel for the appellant on the basis of the above decisions are of no avail in the present case. It may be noticed that all the terms of the compromise petition have not become inoperative, nor they have become null and void, due to the defaults committed by the appellant himself, on non-payment of instalments on the date fixed in the compromise petition. Only those terms which were in favour of the appellant had become inoperative and null and void. Only those terms which were in favour of the appellant had become inoperative and null and void. The other terms of the compromise appearing in para 6 of the said compromise petition, namely, that the plaintiff would be entitled to be awarded a decree for the entire claim, as had been allowed through the suit besides all the other reliefs as sought for including the right of the plaintiffs for their shares in the property in the suit remained in tact which as mentioned earlier formed part of the preliminary decree which was prepared on the basis of the said compromise petition. Reference may be made to Habib Mian V/s. Mukhtar Ahmad, AIR 1969 All 296 where while dealing with the provisions contained in Ss. 2 (2), 47, O. 23 R. 3 of the Code, it was observed that a compromise decree was a creature of the agreement on which it was based and was subject to all the incidents of agreement and it was a contract with the command of a Judge superadded to it. In construing its provisions, the fundamental principles governing the construction of contracts were applicable. One of the cardinal principles in the construction of contracts was that the entire contract must be taken as constituting an organic synthesis, embodying provisions, which balance in the sum of reciprocal rights and obligations. It was through the prism of that principle that the terms of the compromise decree had to be analysed. On perusal of the terms contained in the said compromise petition, it is evident that parties to the compromise clearly intended that on default having been committed by defendant No. 2, in making the payments of instalments on fixed dates, the plaintiffs shall be entitled to be awarded a decree for their entire claim as made in the suit. Thus, according to me, this part of the compromise petition or the preliminary decree did not become inoperative or null and void. Thereafter, the final decree was prepared stating all those facts. On the default haying been committed by defendant No. 2, the plaintiffs were entitled to get their entire claims awarded. When the final decree was put into execution, the executing court under the circumstances in my view, had no jurisdiction to go behind the decree under S. 47 of the Code. On the default haying been committed by defendant No. 2, the plaintiffs were entitled to get their entire claims awarded. When the final decree was put into execution, the executing court under the circumstances in my view, had no jurisdiction to go behind the decree under S. 47 of the Code. The miscellaneous appeal to this Court on the facts and circumstances of this case was also not maintainable under S. 47 of the Code. It may be recalled that in the instant case defendant No. 2 had filed civil revision application No. 413 of 1963 against the order of the learned Subordinate Judge dated 21st Sept. 1972, whereby, it was inter alia ordered that the plaintiffs would be entitled to be awarded their entire claims and on defendants failure to pay the instalments preparation of final decree was ordered. This Court had ordered for converting the civil revision application into a first appeal but they did not do so. Subsequently, defendant No: 2 filed an application for restoration in MJC No. 119 of 1974 on the 4th July, 1974, which was also dismissed on merit on 17th Nov. 1975. If defendant No. 2 was really aggrieved he ought to have filed first appeal against the said order or converted the civil revision application into a first appeal but for the reasons best known to him he did not do so. Thus the contentions of the learned counsel for the appellant under point No. (i) are not acceptable. 10. Now I turn to consider the submission of the learned counsel for the appellant under point No. (ii). The learned counsel urged that on the failure of defendant No. 2 in making payments of instalments on due dates, the respondents could not have straightway asked for preparation of final decree without having got, a fresh preliminary decree prepared. According to him they ought to have filed a petition in the suit stating that defendant No. 2 had defaulted in making payments of the instalments and therefore, order may be passed to the effect that in the circumstances the plaintiffs, namely, respondents 1 and 2 were entitled to their entire claim in the suit and after the said order, a preliminary decree would have been prepared on the basis of the said order, followed by a final decree. Thereafter, respondents 1 and 2 ought to have taken out execution. Thereafter, respondents 1 and 2 ought to have taken out execution. In the absence of not following the procedure prescribed under O. 34 Rules 2, 3 and 4 a prejudice has been caused to the appellant. He invited our attention to Cl. (1) of R. 2 of the Code. The relevant portion of which reads thus :- "(1) In a suit for foreclosure, if the plaintiff succeeds the Court shall pass a preliminary decree." He also referred to Cl. (2) of the said Rule which is to this effect :- "(2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before a final decree is passed, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest." On the basis of those provisions he submitted that an order of the Court in the suit was necessary and thereafter under CL (2) of R. 2 the appellant would have got opportunity to get the time fixed for payments of decretal amount extended before the final decree was passed. He then referred to Cl. (1) of R. 3 of the Code which provides : "(1) Where, before a final decree debarring the defendant from all right to redeem the mortgaged property has been passed, the defendant makes payment into Court of all amounts due from him under sub-rule (1) of R. 2, the Court shall, on application made by the defendant in this behalf pass a final decree." He also drew our attention to R. 4 (1) of the Code which reads thus : "(1) In a suit for sale, if the plaintiff succeeds, the Court shall pass a preliminary decree to the effect mentioned in cls. (a), (b) and (c) (i) of sub-rule (1) of Rule 2, and further directing that, in default of the defendant paying as therein mentioned, the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold, and the proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what has been found or declared under or by the preliminary decree due to the plaintiff, together with such amount as may have been adjudged, due in respect of subsequent costs, charges expenses and interest, and the balance, if any, be paid to the defendant or other persons entitled to receive the same." 11. Here also the learned counsel submitted that under the above provisions the appellant would have got another opportunity for making payments Thus, according to him, those procedures not having been followed, in the instant case, the appellant was deprived of his valuable rights and therefore, the impugned order was vitiated. He referred to the preliminary decree in order to show that the said preliminary decree was prepared on the basis of the compromise petition. It was not prepared after the defaults were committed by the appellant. Therefore, in the present case he submitted that the respondents 1 and 2 have got the final decree prepared without there being a preliminary decree and the order of the court in the suit. In my view, the submissions of the learned counsel for the appellant under point No. (ii) are not available in the present case. While dealing with the submission of the learned counsel for the appellant under item No. (i) I have already held that the compromise petition as well as the preliminary decree which was prepared on the basis of the said compromise petition contains provision as to what would happen in case defendant No. 2 defaulted in making payment of the instalments and that part is alive in the preliminary decree and that part is not extinguished nor it became inoperative. As pointed out earlier it was conceded by defendant No. 2 namely, the appellant in the said compromise petition that the plaintiffs, namely, respondents 1 and 2 would be entitled to be awarded their full claims as laid in their suit. As pointed out earlier it was conceded by defendant No. 2 namely, the appellant in the said compromise petition that the plaintiffs, namely, respondents 1 and 2 would be entitled to be awarded their full claims as laid in their suit. In this case it will be material to refer once again to the terms of the compromise contained under paragraph 6 of the compromise petition, the relevant portion of which runs thus : "That it has been further agreed and stipulated in between the parties that the period of 18 months (commencing from today) fixed for payment of the balance amount of Rs. 23,000.00 shall in no case and circumstance be relaxable and further that in case defendant No. 2 fails to pay the entire balance amount of Rs. 23,000.00 in instalments as agreed to above within the stipulated period of 18 months, then this compromise shall automatically become null, void, inoperative and not binding as if it had never been entered into and the plaintiffs shall then be entitled to be awarded a decree for the entire claim as has been laid through the suit besides all the other reliefs as sought for including the right of the plaintiffs for their share in the property in suit: only that an adjustment shall be made of the sum of Rs. 13,000.00 together with the instalment money or moneys, if any, that happens to be paid." 12. In the instant case, as mentioned earlier, the learned Subordinate Judge in the order dated 21st Sept. 1972 had directed the plaintiffs, namely, respondents 1 and 2 for depositing Rs. 13,000.00 in court. According to the direction of the court the respondents had deposited the said amount in the court and the same was withdrawn by the appellant. Therefore, all that respondents 1 and 2 had to do, they fulfilled their part and, therefore, on the defaults having been committed by the appellant they became entitled to be awarded their entire claims in the suit under the terms contained in paragraph 6 of the said compromise petition. Learned counsel for the appellant submitted that parties in paragraph 6 of the compromise petition have agreed that the plaintiffs would be entitled to be awarded a decree for the entire claims as has been laid through the suit. Learned counsel for the appellant submitted that parties in paragraph 6 of the compromise petition have agreed that the plaintiffs would be entitled to be awarded a decree for the entire claims as has been laid through the suit. Therefore, according to him it was necessary that the respondents ought to have gone to the court and obtained an order of the court and thereafter, the preliminary decree ought to have been prepared. He pointed out that the words the entire claims as has been laid through the suit, clearly indicate that the order of the court in the suit was a must. In my opinion, the words "laid through suit" in the context mean the claims put forward by the plaintiffs in the suit. On a consideration of the provisions contained under paragraph 6 of the compromise petition it is clear that that was not the intention of the parties. On defaults having been committed by defendant No. 2 it was clear that all the concessions made by the plaintiffs in favour of defendant No. 2 had become null and void and inoperative and the full claims as put forward by the plaintiffs in the suit were revived and they became entitled to their full claims to be awarded, and it was on those terms that the compromise decree was prepared and, therefore, on defaults committed by the defendant No. 2 the final decree was also prepared which was put into execution. Therefore, I do not find any irregularity in the order. In 1969 All LJ 480 where the compromise decree provided that, on non-compliance, the defendant may be dispossessed "through court", the decree-holder was held to take possession by executing the decree. According to me it depends upon the intention of the parties entering into compromise which may appear on construction of the terms of the compromise petition. Besides, in my view, it was not necessary that two decrees be prepared; one preliminary and the other final. Reference may be made to Ahmad Mirza Beg V/s. Allahabad Bank Ltd. Lucknow, AIR 1926 Oudh 385 where Ashworth and Novae, JJ. held that O. 23, R. 3 did not contemplate the necessity of two decrees i.e. a preliminary and a final, but only of one decree. Order 34, R. 4, only referred to a case where a plaintiff succeeded and not to a case where the matter was compromised. held that O. 23, R. 3 did not contemplate the necessity of two decrees i.e. a preliminary and a final, but only of one decree. Order 34, R. 4, only referred to a case where a plaintiff succeeded and not to a case where the matter was compromised. Reference may also be made to Quazi Ghulam Amir V/s. Mt. Masuda Khatuh, AIR 1943 All 321 where Verma and Yorke JJ. while dealing with the provisions contained under Order 34 of the Code observed that Order 34 was not exhaustive, and it was open to the parties, even in a suit for sale brought on foot of a simple mortgage, to settle by compromise the form of the decree. For example, they could agree that the decretal amount should be payable by the judgment-debtor by instalments extending over a much longer period than the period of six months laid down in O. 34 R. 2. It is also open to them to agree that the very first decree passed in the suit should be an executable decree and thus could do away with the necessity of the passing, first, of a preliminary decree and, then, of a final decree as provided in O. 34. In Bansidhar V/s. Mt. Sitala, AIR 1944 Oudh 111 Bennett, J. observed that the parties could contract out of O. 34 and could agree that the decree might automatically operate as final decree. He further observed that the intention of the parties was the test. In the instant case also, therefore, I have looked into the intention of the parties as contained in para 6 and other paras of the compromise petition. 13. In the same volume (supra) in Autar Singh V/s. Mohammad Ejaz Rasool Khan, AIR 1944 Oudh 106 Thomas C. J. and Ghulam Hasan J. while dealing with the provisions of O. 34 Rules 2 and 3 observed that there was nothing to debar the parties to a mortgage from contracting themselves out of the provisions of Rules 2 and 3 of O. 34 and to agree to have a decree passed in such terms as to make it operate as a final decree automatically, or to agree that in default of payment of the money by the stipulated date the decree should operate as a final decree for foreclosure at once. Whether the parties contemplated by means of a compromise that the decree should operate as a final decree for foreclosure would no doubt depend upon the terms of the compromise which must be determined and given effect to in each case. The provisions of O. 34, Rules 2 and 3 were no doubt intended for the benefit of the mortgagor, but there was nothing whatever to show that it was not open to a mortgagor to waive the benefit of those provisions in consideration of certain concessions received by him from the mortgagee, and to do away with the necessity of requiring the mortgagee to ask for the preparation of a final decree for foreclosure in default. In the instant case I have already pointed out above by reference to the compromise that concessions were made by the plaintiffs in favour of defendant No. 2. The plaintiffs have given up their rights in their property, and had also agreed to accept the amount in instalments. On those concessions defendant No. 2 had waived the benefit contained under the provisions of O. 34 Rules 2 and 3. 14. Now coming to the cases of our own High Court I find that a similar view was taken in Mst. Arunabati Kumari V/s. Ramniranjan Marwari, AIR 1921 Pat 320 where Das and Adami, JJ. while dealing with the provisions contained under O. 23 R. 3 and O. 34 Rules 4 and 5 observed that if a decree had been passed in accordance with O. 34 R. 4, then such a decree was incapable of execution until the final decree had been passed under the provision of O. 34 R 5. But the proposition was unsustainable that a court in a mortgage action was powerless to pass a consent decree otherwise than in accordance with O. 34 R. 4. Order 23 R. 3 gave ample Power to the Court to pass a decree in accordance with the terms of settlement, and O. 34 R. 4, must be taken as subject to the provision of O. 23 R. 3. In Ishan Chandra Kundu V/s. Nilratan Adhikari, AIR 1923 Pat 375 Mullcik and Kulwant Sahay, JJ. observed at page 312 that it was always open to the parties to a litigation to waive a particular procedure and to agree to a final decree being passed without a preliminary decree being passed in the first instance. In Ishan Chandra Kundu V/s. Nilratan Adhikari, AIR 1923 Pat 375 Mullcik and Kulwant Sahay, JJ. observed at page 312 that it was always open to the parties to a litigation to waive a particular procedure and to agree to a final decree being passed without a preliminary decree being passed in the first instance. A consent decree, directing payment by instalments was a perfectly valid decree and it was not covered by O. XXXIV R. 4 of the C. P. C. and, therefore, it was not necessary to make a final decree under R. 5 of the said order. A similar view was also taken in Harihar Pd. Narain Singh V/s. Gopal Saran Narain Singh, AIR 1935 Pat 385, where Courtney Terrell C. J., and Dhavle J. observed that O. 34 had no application to a compromise decree. That apart, if I were to construe para 6 of the compromise petition and other part of it, as urged on behalf of the appellant, it would amount to giving premium on his defaults and allowing the appellant to take advantage of his own wrong. After having surveyed the various decisions on the point and on consideration of the terms of the compromise petition. I am of the view that the contentions of the learned counsel for the appellant under point No. (ii) also are unsustainable. 15. In the result, therefore, the appeal is dismissed and the impugned order is affirmed. In the circumstances of the case I will not award any cost against the appellant in this appeal. C.N.TIWARY, J. 16 I agree.