JUDGMENT R.N. Gurtu, J.
1. This is a execution second appeal. The appellant is the decree-holder. A final mortgage decree was passed in favour of the decree-holder on the 13th August 1938. One of the Judgment-debtors under the decree was Srimati Kalawati. On the 12th September 1938 an execution application was made. On account of Act X of 1937 the execution was stayed, It was, however, revived. The mortgaged property was sold and purchased by the decree-holder at auction. An objection under Order 21 Rule 90 of the Civil Procedure Code was filed by the judgment-debtors which was dismissed on the 2nd August 1941 whereafter the sale was confirmed on 11th of August 1941 and the execution case was struck off in part satisfaction. Subsequently on 18th of September 1944 a sale certificate was granted to the decree-holder purchaser. Thereafter on the 30th of November 1944 the decree-holder acution-purchaser applied for possession over the property purchased by him at auction sale.
2. Srimati Ganga Dei and Srimati Tarawati are the heirs of Smt. Kalawati who had died during the pendency of the execution application. They were not brought on the record of the execution application. Srimati Ganga Dei offered resistance to the delivery of possession. Her claim was investigated and it was held by the execution court that the one-third share of Srimati Kalawati was not affected by the auction sale in favour of the decree-holder because of the failure to implead her 'heirs after her death.
3. Thereupon the decree-holder filed an application praying that the auction sale should be set aside and that the sold property should be resold again. To that application all the judgment-debtors including .Srimati Ganga Dei and Srimati Tarawati, heirs of Srimati Kalawati were implead-ed. That application was rejected on the 10th of September 1945. An appeal was preferred and during (the course of the appeal a compromise was arrived at between the decree-holder auction-purchaser and all the judgment-debtors including the impleaded legal representatives of Srimati Kalawati. The compromise was in the following terms:
"Baham fariqain,' tasfiya hogaya hai. Appeal manzur kardiya jawe. Nilam jayedad yani kul makan nizai jo ijrai sabqa me ho chuka hai woh mansuq kerdiya jawe. Madyunan respondent an jo raqam degree ki alawa kharcha ijrai subqa wa hai ki wajibulada hogi uski adayegi ke zimmedar rahengey aur degree ko dobara ijra karaneka haq decreedar ko hoga lekin berbinaya nilam sabqa ko haq decreedar bahaisiyat mushari ke hasil na hoga. Kul makan nilamsuda ke malik madyunan hain aur fahenge tawaqteke woh dubra degree men nilam na howe ya degree ada na ho jawe".
4. On the 15th of March 1947 an application was made for execution of the decree in terms of the compromise arrived at on the 12th of September 1946. The learned Munsif held that the compror mise was unlawful inasmuch as the auction sale having been confirmed and having become absolute could not be set aside later in the course of the execution proceedings by an agreement between the parties. It also was of the view that the compromise dated 12th of September 1946, which permitted a fresh sale under the mortgage decree after the expiry of the period of limitation, was unlawful. Upon an appeal by the decree-holder the court below upheld the view of the learned Munsif and dismissed the appeal. This second appeal is by the decree-holder.
5. Mr. Briji Lal Gupta appearing for the appellant has argued that it was open to the parties to enter into a compromise during the course of execution proceedings and that the executing court was bound to give effect to the compromise. His contention further was that the present application was only an application to revive the original execution proceedings initiated on 12th of September 1938. He claims that inasmuch as on the 12th of September 1946 there was an agreement to treat the sale held pursuant to the execution application dated 12th of September 1938 as no longer binding on the parties all that was done pursuant to that application must be deemed to have been undone and all orders passed by the court with reference to that application must be deemed to be without force and the application dated 12th of September 1938 must be deemed to be still undisposed of despite the fact that it was stated to have been struck off in part satisfaction.
On the other hand, the learned counsel for the respondent's urges that the execution application dated 12th of September 1938 cannot be deemed to be pending and that there was no power in the parties to enter into a compromise in execution proceedings after sale had taken place and had been confirmed. Mr. Brij Lal Gupta relied upon the case of Oudh Commercial Bank Fyzabad v. Bind Basni Kuer, AIR 1939 PC 80 (A) that was a case where in a mortagage suit a final decree was passed and a prior execution was terminated by a court order and then a subsequent application being made it was held:
"That the application could not be regarded as a fresh application in the sense of Section 48 of the Code merely by reason of the steps which the decree-holder thought it necessary to take to undo the action of the executing Court in terminating the execution case contrary to the intention of the parties. Nor the claim of interest at increased rate agreed to in the agreement made the application a fresh application as distinct from one to continue the previous proceedings as contemplated by the compromise of 1927. Nor did the fact that only part of the original properties remained bound by the security and saleable under the decree. It was on the contrary an application to revive the previous proceedings on the footing that they had not terminated. Hence the application was not a fresh application as contemplated by Section 48".
6. A perusal of the judgment of their Lordships of the Privy Council shows that at one stage there had been a sale of the property but that sale was cancelled on 18th of November 1922 by agreement arid the judgment-debtors had agreed to pay certain sums by October 1923 which sums they paid. Thereafter there were other agreements and on 9th of March 1927 there was a final agreement made by the parties whereby inter alia it had been agreed that the proceedings for auction sale should remain in abeyance in case the fixed instalments were paid regularly but if there was default the decree-holder would be competent to take out the execution immediately of its entire demand.
7. When a default was committed the decree-holder applied for an execution of its decree. The contention was that this application was a fresh application and was barred by the 12 years' rule. The Subordinate Judge upheld the contention but their Lordships of the Privy Council treated that application as a continuance of the earlier application whereunder the sale already referred to had been held. The Privy Council case is art authority for the proposition that a fair bargain may be entered into between the parties relating to the execution of the decree in execution proceedings and if the nature of the agreement is such that the execution application in connection with which that agreement is made cannot be deemed to have been finally disposed of as having been satisfied then a subsequent application made for enforcement of the agreement is merely in the nature of an application to revive the prior application.
8. If it is open to parties to treat a sale as cancelled by an agreement as appears from this Privy Council case I do not see why the fact that the sale had been confirmed should make it impossible for the parties in a situation as in the present case to agree that the confirmation of sale should be considered as cancelled nor do I think that the dismissal of a previous objection under Order 21 rule 90, C. P. C. should prevent parties in circumstances similar to that in this case from agreeing to treat the sale as cancelled as already stated the agreement in this case, which was entered into between the parties, was in connection with an application of the decree-holder that a fresh sale should be held under the decree because the previous sale could not bind the interest of Srimati Kalawati as she was not impleaded in the execution application.
It was open to the judgment-debtors to have urged that such an application was not competent and to have it thrown out on that contention but if they chose to enter into an agreement with the decree-holder there is no reason, why in the light of the Privy Council case effect should not be given to that agreement. It has long been recognised that agreements could be made in execution proceedings extending the time for payment or providing for a mode of payment which was not incorporated in the decree under execution and in such cases when the failure to comply with the agreement takes place and the decree-holder applies for execution it has been held that the decree-holder's application is merely in the nature of an application to revive the previous application for execution in which the agreement was made. See Mahendra Rao v. Bishambhar Nath AIR 1940 All 270 (FB) (FB) (B). It has also been held in Bhiki Mal v. Kundan Lal AIR 1940 All 107 (C) that where the original decree had been converted by compromise into a decree for payment by instalments and the decree-holder cannot execute the decree until the judgment-debtor had defaulted, the decree-holder's application though after twelve years from the date of the original decree but within three years of the last payment by the judgment debtor under the compromise was within limitation.
The same view was taken in Chhatra Pati v. Hari Ram, AIR 1940 All 423 (D). Here too a person had obtained a decree against the judgment-debtor on the 17th of May 1926. On the 21st of April 1928 a compromise was entered into between the parties in the execution proceedings by which the decretal money was to be paid In eight yearly instalments, each instalment payable on the 31st of May. The judgment-debtor paid the first four instalments but made a default in the payment of the fifth instalments which fell due on 31st of May 1933.
The application for execution was made by the decree-holder on 5th of July 1938. It was held that the period of 12 years would be computed from the date of the default, i.e., 31-5-1933, and the application was within time and was not barred by section 48. It will thus be seen that without an amendment of the decree having been effected the parties to the decree can during the course of execution come to an agreement which not only has the effect of varying the mode of payment but which has the effect of permitting the execution of the decree beyond the period of limitation which would be available if the period of limitation was to be calculated with reference to the date of the decree. In my view, therefore, the agreement between the parties in this case could be enforced in execution and the present application as in the nature of an application to revive the previous execution application.
9. There is one point which was urged and that was that inasmuch as in the previous execution application Srimati Kalawati's heirs were not) made parties after her death that previous execution application could be of no avail now as against the heirs of Srimati Kalawati even though they had agreed that the previous sale should be set aside and a fresh sale should take place. In Hrishikesh Saha v. Radha Rani Kar, AIR 1946 Cal 51 (E) it was held that though the decree-holder after he has presented his petition for execution could not proceed against any new party whose name was not mentioned in the petition yet that principle did not apply where the decree-holder does not want to proceed against any new patty but prays for continuance of the proceedings against the heir or legal representatives of the judgment-debtor originally on the record. It was also indicated that where a judgment-debtor dies pending the execution proceedings it is not necessary for the decree-holder to file a fresh application. He can continue the same execution proceedings against the hairs of the deceased by bringing them on the record. There is no bar to the names of Srimati Kalawati's heirs now being brought on the record of the first execution application, as no question of limitation arises. In my view, therefore, the agreement should have been given effect to by the courts below.
10. This appeal is accordingly allowed, the judgments and the decrees of the courts below are set aside and the decree will now be executed in accordance with the agreement arrived at between the parties. Costs on parties of this appeal and of the Courts below. Leave to appeal to a Division Bench is refused.