Asutosh Mookerjee, J.

1. This is an appeal by the judgment debtor against an ordermade in proceedings in execution of a consent decree dated the 12th January1901. The respondents sued the appellant for establishment of their allegedright of way over a tract of land towards the west of her tank. During thependency of the suit the parties came to terms and a decree was made byconsent. The substance of the decree was that the respondents were allowed apathway, two-and-a-half cubits wide, (eighteen inches to the cubit) towards theeast of the western most boundary of the land then in possession of theappellant. The decree specified, in the alternative, that if, on a futureoccasion, the thak map was relayed, the way would lie towards the east of thethak line, that is, the western boundary of the way would coincide with thethak line, which, it was added, was proof of the title and possession of theappellant. But though this decree was made on the 12th January 1901, thedecree-holders did not prosecute their successive applications for execution tothe final stage of delivery of possession; four applications were practicallyinfructuous, and the present application was made on the 11th January 1913,that is, on the last day of the twelfth year from the date of the decree,within which application for execution is permissible under Section 48 of theCivil Procedure Code. A controversy has now arisen between the parties as tohow this decree is to be executed. The decree-holders contend that they areentitled to have the decree executed according to the present possession of theappellant. They have been driven to put forward this contention, because duringthe dozen of years that have elapsed since the decree was made, persons notbound by the decree have encroached on the land over which the way, ifdemarcated according to the possession of the appellant in 1901, would lie. TheCourt of first instance gave effect to the contention of the decree-holders andthat order has been affirmed on appeal by the District Judge. In our opinion,this view is manifestly incorrect.

2. The decree must be executed as made, and cannot be variedby the execution Court in the light of subsequent events: Madan Mohan Nath Sahiv. Bhikhar Shahu 15 Ind. Cas. 719 [LQ/CalHC/1912/176] : 16 C.L.J. 517. This principle applies withspecial force to a consent decree of the description now before us. As was wellobserved in Huddersfield Banking Co. Ltd. v. Henry Lister & Son Ltd. (1895)2 Ch. 273 : 64 L.J. Ch. 523 : 12 R. 331 : 72 L.T. 703 : 43 W.R. 567 a consentdecree has precisely as much validity as and no greater validity than theagreement between the parties which receives judicial sanction. Here theagreement between the parties was that the defendant (nowjudgment-debtor-appellant) would allow the plaintiffs (now decree-holders-respondents) a pathway according to the title and possession as theyexisted at the time when the agreement was made. The Court gave effect to thisarrangement and the decree-holders are entitled to the full benefit thereof,but to nothing beyond. Yet they have made no attempt to establish by evidencehow the possession stood at the time of the decree and have, on the other hand,claimed, contrary to the decree, a way according to present possession. In thisview, the Court would be amply justified to dismiss the application forexecution. But we are prepared to give the decree-holders the alternativerelief contemplated by the decree, specially as the judgment-debtor does notobject to the adoption of that course, namely, that the way should run towardsthe east of the western thak line, as relayed by the Commissioner. No exceptionwas taken to the report of the Commissioner by the decree-holders; an objectionwas, no doubt, preferred by the judgment-debtor, but it was subsequentlyabandoned. Consequently the position is that the decree-holders may be given apathway towards the east of the thak line; the breadth of the way will be twoand a half cubits and eighteen inches will be taken as the measure of a cubit.If, when the way is demarcated, it is found to run over land which has beenobstructed by the judgment-debtor herself, the obstruction will be removed. Butif the obstruction has been erected by persons who are strangers to the decreeand are not bound thereby, the decree-holders must be left to their remedy againstsuch persons by a suit properly framed for the purpose. It has been pressedupon us very earnestly on behalf of the respondents that this view is likely toembarrass the decree-holders. We are not satisfied that there will be any realhardship to them; but if there is any, they themselves are entirely to blamefor the result of their inaction during a period of more than twelve yearsafter the decree.

3. The result is that this appeal is allowed, the order ofthe District Judge set aside and an order made in terms of this judgment. Eachparty will pay his own costs throughout these proceedings.

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Prasanna Kumari Debivs. Sris Chandra Majumdar and Ors.(24.05.1915 - CALHC)