JUDGMENT
Narayan, J.
1. This is a judgment-debtor’s second appeal arising out of an execution proceeding. The judgment-debtor was occupying a house belonging to the decree-holder as his tenant, and on 14th September 1943 the decree-holder instituted a suit for ejectment; and for arrears of rent. There was a further claim for damages at the rate of RS. 6 per day from the date the tenancy had terminated and up till the date of delivery of possession. The suit was heard and disposed of on 23th July 1946, The decree-holder and the judgment-debtor examined themselves, and they agreed to certain terms which were recorded by the learned Munsif. The order of the learned Munsif recording the terms of the compromise runs as follows:
“The parties have agreed to compromise the case. The defendant agrees to pay to the plaintiff Ra. 528-5-0 as rent till August 1943 setting up all his claims, within three months from today. He also promises to pay rent of the plaintiff at Rs. 33-5-0- per month from September 1943 to July 1946 by the end of January 1947. He is also ready to vacate the house. The plaintiff agrees to forgo his claim for costs, interests and damages in this suit if the dues are paid in time. It is, therefore, ordered that the suit be decreed according to the terms stated above. No cost shall be awarded. A money decree for Rs. 528-5-0 shall be prepared. The defendant is also to vacate the house by 2nd August 1946. He was also to pay to the plaintiff by January 1947 all the arrears of rent for the period between September 1943 and July 1946. On his failure to pay up the dues in time, the plaintiffs will be entitled to realise the same with coats and Interest, through Court on his depositing proper court fees.”
The suit was thus disposed of on compromise, and the terms of the compromise were incorporated in a decree which was “drawn up on 9th August 1946. It would appear from the terms of the compromise that Rs. 528-5-0 had to be paid by the judgment-debtor to the decree-holder as arrears of rent till August 1943, and it is common ground that this amount has been paid up. On 18th November 1946, the decree-holder filed an application for execution which was registered as Execution case No. 27 of 1946, in which be sought to execute the decree for ejectment. This application for execution was, however, dismissed on 14th March 1947 and probably at the instance of the judgment-debtor. The present application for execution was filed on 10th April 1943, and it is for the realisation of Rs. 33-5-0 per mouth for the period September 1943 till July 1946 with interest and costs. This execution case is still pending and has been registered as Execution Case no. 56 of 1948. On 2nd June 1949, the judgment-debtor filed a petition purporting to be a petition under Sections 47, 151 and 152, Civil P. C., in the aforesaid execution case, and the contentions raised by the judgment-debtor were (1) that the decree was inexecutable in law, (2) that the order of compromise is without jurisdiction as it relates to matters “extraneous to the agreement”, and (3) that the judgment-debtor is not liable to pay interest or damages. It appears from the judgments of the Courts below that the only question seriously canvassed before them was that the terms in the decree relating to the payment of Rs. 33-5-0 per month from September 1943 till July 1946 were beyond the scope of the suit and that, as such, these terms could not be enforced in the execution case filed by the decree-holder. Mr. Mahabir Prasad for the judgment-debtor-appellant did not seriously press this contention, but as this was practically the only point urged before the Courts below, I must express my opinion with regard to it. The claim in the suit in which the decree sought to be executed was passed can be classified under the following three heads : (1) A decree for Rs. 599-11.6 as arrears of rent; (2) a decree for the ejectment of the defendant from the house as his tenancy had been terminated by a notice; and (3) a decree for damaged or mesne profits for the period commencing from the expiration of the tenancy and up till the date of delivery of possession at the rate of Rs. 5 per day over which the plaintiff had undertaken to pay the court-fee as assessed by the Court.
2. By the compromise the defendant became liable to pay Rs. 528-5-0 as arrears of rent, and this portion of the claim has already been satisfied.
3. The learned Additional District Judge says that the
“consent order of the learned Munsif dated 3rd July 1946 shows that the appellant in view of the order of the Commissioner of Patna Division directing to vacate the house by August 1946 agreed to vacate the house by 2nd August 1946 and that consequent on his being in possession of the house subsequent to the termination of the tenancy from 1st September 1943 to July 1946 after which he agreed to vacate the house, he was liable to pay damages, and this was fixed at Rs. 33-5-0 per month with the consent of the parties.”
It is manifest that when the, judgment-debtor agreed to pay Rs. 33-5-0 per month for the period commencing in September 1913 and terminating by the end of July 1946 he conceded that he was liable to pay damages since after the date on which the tenancy had terminated. The decree-holder had made the claim for damages at the rate of Rs. 5 per day, but this portion of the claim was substantially reduced by the compromise, the decree-holder having agreed to receive and the judgment-debtor having agreed to pay only Rs. 33-5-0 per month for this period. In the order of the learned Munsif, this amount of Rs. 33-5-0 per month has been described as ‘rent’, but it is really of the nature of compensation, and evidently the amount was described as ‘rent’ in the order, because the rent for the house was payable at this rate and at no other rate. The claim for damages at the rate of Rs. 5 per day was certainly quite exorbitant, and when the parties entered into the compromise it was agreed that the judgment-debtor instead of paying damages at any higher rate will be liable to pay damages only at that rate at which the rent had been paid. Because by the compromise the damages had to be paid at the rate at which the rent had been paid, they were described in the order of the learned Munsif as ‘rent’. But whether it is called rent, damages, or compensation, it was certainly within the scope of the suit to allow something to the plaintiff as compensation for the period commencing from September 1913, inasmuch as the tenancy of the judgment-debtor had terminated in August 1943. There was a specific claim for damages, though at a very high rate from September 1943 till the date of delivery of possession, and this portion of the claim was reduced by the compromise to Rs. 33-5-0 per month. There can be no substance in the contention that the terms of the compromise by which RS. 33-5-0 is payable by the judgment-debtor to the decree-holder for the period September 1943 till July 1946 are beyond the scope of the suit, when there was a definite claim for damages from September 1943 till the data of delivery of possession. When these terms are to be regarded as terms within the scope of the suit, the question does not arise whether in this suit we should follow the decision of a Full Bench of this Court in Charu Chandra v. Shambhu Nath, 3 Pat. L. J. 255 : (A. I. R. (5) 1918 Pat. 507 (F.B.)) or a decision of a Division Bench of this Court in Muhammad Ismail v. Bibi Sharma, 13 Pat. 17 : (A. I. R. (21) 1934 pat. 203). In the former case it was held that when the compromise deals with matters directly within the scope of the suit the Court must accept the compromise and record it and having so accepted and recorded it, he must prepare and draw up a decree in accordance with it so that the same may be executed in the due and ordinary course of procedure, and that even if the compromise contains matters outside the scope of the suit, the Court must record the entire compromise and draw up a decree giving the parties the right to execute it is respect of the matters which fall within the scope of the action, leaving it to the parties to enforce by whatever means they like that portion of the compromise which refers to the matters outside the scope of the suit. It will be preposterous to contend in this case that the compromise relating to the payment of RS. 33-5-0 per month is outside the scope of the suit and that though it has been accepted and recorded, the decree-holder is not able to execute this part of the decree in the due and ordinary course of procedure. In my opinion, this Full Bench case is an authority against the judgment-debtor and not in his favour. In Muhammad Ismail v. Bibi Sharma, 13 Pat. 17 : (A. I. R. (21) 1934 Pat. 203), it Was held by Courtney-Terrell C. J., with whom Saunders J., agreed that the executing Court had no power to go behind the decree which it was ordered to execute and that it was not open to it to consider that any of the terms of the compromise was outside the scope of the suit. The proposition of law as laid down in this case may or may not be regarded as too wide, but even if it is regarded as too wide, that will be immaterial for the purposes of this case in which the terms in question would be deemed to be absolutely within the scope of the suit. In Mohamad Yahia v. Mt. Bibi Soghra, A. I. R. (24) 1937 Pat. 232 : (169 I. C. 741), Wort J., with whom Agarwala J. agreed observed that the question whether the matter was the subject-matter of the suit would depend primarily upon the circumstances of each case, and this decision appears to me to be important, because in this case even an agreement to obtain a partition from the Court in a suit by the plaintiff for accounts with regard to the whole property was held to be a valid agreement within the scope of the suit. Their Lordships held that the arrangement having been arrived at to facilitate management and being in consideration of the plaintiff’s giving up her right to an account was one directly connected with the subject-matter of the suit and therefore within the scope of the suit, it is unnecessary to multiply authorities on this point and especially when Mr. Mahabir Prasad did not like to press the contention that the agreement with regard to the payment of Rs. 33-5-0 per month should be regarded as an agreement beyond the scope of the suit.
4. But Mr. Prasad contended that the order of the learned Munsif that on his failure to pay up his dues in time, the plaintiff will be entitled to realise the same with costs and interest through Court on his depositing proper court-fees is not based on any agreement between the parties, and that, as such, if this agreement is to be enforced, it can only be enforced by means of a regular suit. In other words, the learned counsel meant to urge that there was no decree in this case for the payment of Rs. 33-5-0 per month which could be executed without recourse to another regular suit. With the greatest respect for the arguments advanced by the learned counsel, I do not find any merit in this contention, it being another point whether the decree-holder is entitled to recover interest on the aforesaid amount and the amount of costs claimed in the execution case. If there is any stipulation for the payment of money, the condition that the amount which, according to the terms of the agreement, the judgment debtor is liable to pay, would be realised by execution in the event of his failure to pay the amount is implicit. As I have already pointed out, the compromise recorded by the learned Munsif is based on statements made by the decree-holder and the judgment-debtor, and the judgment-debtor who happens to be as Advocate has stated before the learned Munsif that he bad “promised to pay rent to the plaintiff at RS. 33-5-0 per month from September 1913 to July 1946.” It is also clear from his deposition that he has promised to pay this amount by the end of January 1947. The amount was, however, not paid, and therefore this execution case was filed. In the presence of the parties and their lawyers the order must have been recorded by the learned Munsif, and it was open to the judgment-debtor to move higher Courts against the order of the learned Munsif, if he was convinced that the learned Munsif had misunderstood the agreement and had made a wrong note in his order that on the failure of the judgment-debtor to pay up the amount the same could be realised through Court. Both parties felt satisfied by this order, and the order cannot be questioned now in the execution proceeding when on the face of it is purports to be an order based on the agreement entered into between the parties which agreement was meant to be an enforceable agreement. There is no reason for supposing that the decree declared only the rights of the parties and was incapable of being executed. On reading the statements of the parties and the order of the learned Munsif, I fail to appreciate the contention that the decree was only a decree declaring or creating rights which could not be enforced in execution and which could be enforced only by another regular suit. It need hardly be said that the operative part of the decree which is confined to the subject-matter of the suit can without any difficulty be enforced as between the parties to the suit by taking recourse to an execution proceeding. It is only a matter which is extraneous to the suit which can be enforced by taking recourse to another regular suit. Certainly the terms of this compromise not only gave the right to the decree-holder to realise Rs. 33-5-0 per month but it also gave him the right to claim this amount in an execution pursuant to the decree. I am, therefore, of the opinion that the decree-holder is entitled to realise the amount of Rs. 33-5-0 per month allowed by the decree by execution. But I agree with the appellant’s learned counsel that the clause in the decree for the payment of coats and interest is too vague to be enforced. The rate of interest is not disclosed, and the respondent’s learned counsel had to concede that it was difficult for the Court to fix the rate of interest when the rate had not been disclosed. But the respondent’s learned counsel faintly suggested that when the rate of interest had not been disclosed, the usual rate of interest, that is 6 per cent, par annum, should be allowed. Of course, there are cases in which a decree awarding plaintiff’s claim with usual interest has been interpreted to mean interest at the rate of 6 per cent, per annum. But even if such an interpretation can be placed upon the orders of a Court, it cannot be placed upon the agreement entered into by the parties. The agreement must be clear and specific, and the respondent’s learned counsel pointed out to us that in this suit interest had been claimed at 18 per cent, per annum. If ‘interest had been claimed at 18 per cent, per annum and if the decree does not disclose the rate of interest which the judgment-debtor has to pay, then the logical inference will be that the judgment-debtor has made himself liable to pay interest at the rate of 18 per cent, per annum. But even the decree, holder is not claiming the rate of 18 per cent, per annum. The Court cannot make out a new contract for the parties, and there is no good ground for allowing interest at the rate of 6 per cent, per annum as suggested by the respondent’s learned counsel. In my opinion, therefore, no interest can be awarded on the amount claimed in this execution case.
5. The order of the learned Munsif says that no costs shall be awarded, and it further says that the plaintiff will be entitled to realise the amount of Rs. 33-5-0 per month with costs and interest. The costs as claimed in this execution case consist of two items, namely, the item of Rs. 107-8-0 mentioned in the decree and the amount of RS. 178-2-0 which has been paid by the decree-holder as court-fee on the claim of Rs. 1165-15-0 which is the total sum payable for the period September 1943 to July 1946. When there is a clear order that no costs shall be awarded I do not understand bow the decree, holder can claim RS. 107-8-0 which is the amount of costs mentioned in the decree, and there is no direction in the decree for the realisation of the amount of court-fee paid by the decree-holder on Rs. 1165-15-0. In this view I am of the opinion that costs as claimed by the decree-holder cannot be awarded.
6. In the result the appeal is allowed in part and the order of the Courts below is varied only to this extent that the decree-holder will not be entitled to recover from the judgment-debtor the amount of interest and the amount of costs as claimed in Execution case No. 56 of 1948. Parties will bear their own costs of this Court as wall as of the lower appellate Court.
Ramaswami, J.
7. I agree.