Fazl Ali, J.The only point which arises in this miscellaneous appeal is one of limitation and it arises on the following facts. On 30th November 1932, the respondent obtained an ex parte decree for money against 4he appellants. The decree was first put into execution on 4th April 1935, and the execution was at first resisted by the judgment-debtors, but subsequently on 19th August 1935 the parties entered into a compromise under which the appellants agreed to pay Rs. 1461 in respect of the decretal amount, Rs. 16 as cost of the execution case and Rs. 863 in connexion with a Small Cause Court decree which had been obtained by the respondent against the. appellants. According to the compromise the total sum payable by the appellants came to Rs. 1840 out of which Rs. 271 was remitted by the respondent and it was arranged that the balance of Rs. 1569 would be paid by the appellants in three yearly instalments payable respectively on 19th August 1936,19th August 1937 and 19th August 1938. The judgment-debtors further agreed to pay interest at 6 per cent, per annum on the amount pay able under the new arrangement and they also agreed that the existing attachment of the property of the appellants would continue. The compromise with all the terms stated above was recorded by the Court and the execution case was disposed of according to those terms. As however the appellants failed to carry out the terms of the compromise, the respondent took out a second execution on 19th March 1988 for a sum of Rs. 1569. This time also the appellants filed an objection, but the parties again entered into a compromise by which the appellants bound themselves to pay Rs. 1865 odd on 21st February 1940 and further agreed that the existing attachment of the properties would continue. The present execution case having been filed on 22nd April 1940, the main objection of the appellants is that it is barred by limitation. This objection has been overruled by both the Courts below and hence this appeal.

2. The point raised on behalf of the appellants in this Court is that the second application for execution must be ignored, because it was not an application for executing the decree passed in the money suit but an application for executing a new arrangement based on a compromise which the executing Court had no jurisdiction to give effect to. It is contended that the executing Court had no jurisdiction to give effect to the new arrangement on two grounds, firstly, that it had no jurisdiction to fix the instalments which even the Court of first instance which had passed the decree could not fix more than six months after the decree in view of Article 175, Limitation Act, and secondly, that it had no jurisdiction to include the amount payable under a Small Cause Court decree which was a totally different decree and add, it to the amount of the decree payable under execution. The learned advocate for the appellants in support of this contention relied upon Debi Rai v. Gokal Prasad 3 All. 585, Abdul Rahman v. Dullaram 14 Cal. 348 , Gobardhan Prasad v. Bishunath Prasad AIR 1921 Pat. 340, AIR 1937 256 (Privy Council) and Bishwanath Prasad Mahtha v. Lachmi Narain AIR 1935 Pat. 380 .

3. Now, in my opinion, the short answer to the argument which has been put forward on behalf of the appellants is that it is now too late to urge that the second application for execution was one which the Court could not entertain. It seems to me that this is an objection which should have been raised by the appellants when the second application for execution was made. We know that the second application for execution was objected to by the appellants, but they have not placed before us the grounds of their objection in this proceeding. It is, however, admitted that they entered into a fresh compromise which could have been entered into only on the footing that the application for execution was a good application and was one which the Court had jurisdiction to entertain. The question, therefore, of jurisdiction must, by implication, be deemed to have been decided against the appellants. It is contended on behalf of the appellants that in fact there was no decision but the Court did dispose of the execution proceeding on the footing that the application for execution was a good application and could be entertained. In my opinion, therefore, the contention of the appellants must fail and if that contention fails and it is held that the second application for execution was a good application, no question of limitation can arise and the cases cited on behalf of the appellants can have no application.

4. Though no further discussion is necessary for the purpose of this appeal, yet I shall very briefly record my views in regard to the contentions raised on behalf of the appellants questioning the jurisdiction of the executing Court. The contention that the Court had no jurisdiction to include the amount due under another decree is no longer of any importance, because it is conceded by both the parties that the execution has been allowed only in respect of the money due under the money decree and not in respect of the amount due under the Small Cause Court decree. The only serious question which requires consideration is whether the executing Court had jurisdiction to fix the instalments. Now, it is to be noticed that iii this particular case the executing Court did not fix the instalments suo motu. There was an adjustment of the decree before the Court and the Court merely recorded that adjustment. It is true that under Order 23, Rule 4 the provisions of Order 23, Rule 3 are not applicable to an execution proceeding, but it seems to me that Order 21, Rule 2 and Section 47, Civil P.C., taken together provide a complete procedure for recording a compromise arrived at in execution proceedings. The learned advocate for the appellants relied in this connexion on Gobardhan Prasad v. Bishunath Prasad AIR 1921 Pat. 340, in which the facts were as follows: The original decree was passed on 23rd March 1906 and this was followed by an application for execution on 21st May 1918. This being more than 12 years from the date of the decree, the judgment-debtor contended that the application was barred u/s 48, Civil P.C. The decree-holder, on the other hand, sought to save limitation by reason of an order dated 27th July 1912. This order appears to have been passed in the course of one of several applications for execution and it was to the following effect:

The decree-holder and judgment-debtor filed a petition of adjustment on 10th July last. I sanction the adjustment. It is ordered and decreed that the claim is adjusted at Rs. 2325 and that the debtor having paid Rs. 700 the balance of Rs. 1625 shall be paid as follows....

5. After this, certain dates are mentioned showing that the amount at which the claim had been adjusted was to be paid in certain instalments. Now, as I have already stated, the application for execution having been made in this case more than 12 years after the decree, the judgment-debtors contended that it was barred u/s 48, Civil P.C. The decree-holder on the other hand tried to save limitation by bringing the case within Clause (b) of Section 48. It may be re-called that Section 48 provides that no order for the execution of a decree not being a decree granting an injunction shall be made upon any fresh application presented after the expiration of 12 years from (a) the date of the decree sought to be executed; (b) where the decree or any subsequent order directs any payment of money to be made on a certain date or at recurring period, the date of default in making the payment in respect of which the applicant seeks to execute the decree. As in that particular case the executing Court had passed an order for the payment of the decretal amount by instalment, it was suggested that the case would be governed by Clause (b) of Section 48, because this was a subsequent order for the payment of money to be made at a recurring period. The High Court, however, negatived this view and pointed out that "the subsequent order" must be an order made by the Court which passed the decree and not an order made by the executing Court. This appears to me to be the substantial point decided in the case, though it appears that in the first two Courts and before the High Court it was contended that the order had been made or at least could have been made under Order 20, Rule 11. Thus, when the case upon which the learned advocate for., the appellants places so much reliance is carefully read and analysed, it will be clear that it is no authority for the view that the executing Court has no jurisdiction to order the payment of the decretal amount by instalments even if the decree-holder and the judgment-debtor enter into a compromise which provides for the payment of the decretal amount by instalments. As I have already said, such compromise would fall under the provision of Order 21, Rule 2 and the executing Court will be quite competent to make an order in the terms of the compromise. Speaking for myself, I do not see why the parties should not be allowed to enter into an arrangement as to the manner in which the decretal amount is to be paid and why the Court should be powerless to give effect to such an arrangement. In my opinion, therefore, the compromise order passed by the executing Court cannot be treated as a nullity and the second application for execution cannot be ignored. If the second application is not ignored, then the present application cannot be said to be barred by limitation. In my opinion, the plea of limitation has been rightly negatived by the Courts below and I would accordingly dismiss this appeal with costs.

Shearer, J.

I agree.