Das, J.

1. This is an appeal on behalf of the judgment debtors. A preliminary objection has been taken to the effect that no appeal lies, but in the view that I take of the case, it is quite unnecessary to deal with that point. I shall assume that the appeal has been properly brought to this Court.

2. It has been urged in the first place that the decree is incapable of execution until a final decree in the form provided by Order XXXIV, rule 5, had been passed by the Court. In my view the objection is unsustainable. Mr. Sushil Madhav Mullick's argument is that the suit which resulted in the decree was a mortgage suit and, therefore, it was incumbent on the Court to pass a decree in accordance with Order XXXIV, rule 4. His next argument is that if it was incumbent on the Court to pass a decree in a mortgage suit in accordance with the provision of Order XXXIV rule 4, then the decree passed by the Subordinate Judge is incapable of execution until the final decree has been passed under Order XXXIV, rule 5. I accede to the proposition that if a degree has been passed in accordance with Order XXXIV, rule 4, then such a decree is incapable of execution until the final decree has been passed under the provision of Order XXXIV, rule 5. But I altogether deny the proposition that a Court in a mortgage action is powerless to pass a consent decree otherwise than in accordance with Order XXXIV rule 4. Mr. Mullick refers us to the express provision of Order XXXIV, rule 4. He says that the Code provides that in a suit for sale if the plaintiff succeeds, the Court shall pass a decree in the form mentioned in Order XXXIV, rule 4. That is quite true. But I do not think that there is anything at all in this rule which prevents the parties from adjusting their differences in the suit Order XXIII, rule 3, gives ample power to the Court to pass a decree in accordance with the terms of settlement, and Order XXXIV, rule 4, must be taken as subject to the provision of Order XXIII, rule 3. Now the consent decree shows that it was not framed in accordance with Order XXXIV, rule 4. The liability of the defendants was ascertained and time was granted to them up to Baisakh 1326, and then the decree provided as follows: "The plaintiffs shall be competent to realise from the property the decretal amount in addition to the amount which they will pay to day." If there was no provision to this effect, then the decree would be incapable of execution. The plaintiffs would have to file a suit on the basis of the compromise decree, but this provision gives the plaintiffs a right to take out execution if the money due to them was not paid by Baisakh 1326. It is not suggested by Mr. Mullick that every condition precedent entitling the plaintiffs to sue out execution has not happened. In my view the argument advanced by Mr. Mullick is unsustainable.

3. The next point is that if the decree be executed as a money decree, then attachment is essential, and as it is conceded that there was no attachment the execution proceedings are incompetent. There is again a fallacy in the argument. The decree is neither a money decree nor a mortgage decree. It is a decree based on compromise between the parties. If there is nothing in the decree itself to indicate that, before taking out execution, the plaintiffs would have to go through the formality of attaching the properties, although they were already attached by virtue of the mortgage, then I do not think that the contention can possibly succeed. There is in my view nothing in the consent decree to suggest that it was necessary for the plaintiffs before taking out execution to go through the formality of attaching the property. The consent decree provided that the properties shall remain mortgaged and hypothecated, and that if the money due to the plaintiffs be not paid by Baisakh 1326 the plaintiffs would be entitled to take out execution. All the conditions being satisfied, the plaintiffs are entitled to execute the decree by sale of the mortgaged property.

4. The third argument is that the Court should have given the parties time to take objections to the settlement of sale proclamation. That mutter was considered by the learned Subordinate Judge in the Court below, and I am not prepared to say that the discretion exercised by the learned Subordinate Judge in not giving time was unreasonably exercised.

5. The last argument is that the consent decree as passed want beyond the scope of the mortgage suit and was, therefore, incapable of execution. In my view there is no substance in this contention. The question has been debated in various cases with reference to the law of registration, and it has been pointed out by the Full Bench of this Court that when a suit is properly compromised but the adjustment consists partly of an agreement relating to matters outside the scope of the suit, if the entire compromise is laid before the Court, and the Court is invited in consequence to dispose of the salt, and the Court does dispose of the suit accordingly, then the agreement is exempt from registration, although the decree deals only with the subject-matter of the suit and does not deal with the portion of the compromise which lies outside the suit. Now I take this as establishing the proposition that the consent decree is a decree. If that portion which is outside the scope of the suit be not part of the decree itself, then it would be impossible to say that that portion should not be registered according to the law of registration. If that view be correct, then the question resolves itself merely into this. Is the decree capable of execution In my view on the grounds which I have stated, the decree is capable of execution.

6. I would accordingly dismiss this appeal with costs. The Civil Revision No. 231 is unnecessary. This must accordingly fail and is dismissed.

L.C. Adami, J.

I agree.