Ratnasawmi Chetty, by his next friend, Velayudam Chetty vs Ratnammal and Another

A suit was brought to set aside a will as a forgery. The plaintiff who was a minor by his next friend and the 2nd defendant who was also a minor

by his guardi; n applied to the Court for leave to compromise the suit on the terras set forth in a Razinamah. As it appeared to the District Munsif

that the compromise was fit and proper and for the benefit of the minors the Court gave its sanction, and with the consent of the parties passed a

decree in terms of the Razinamah. The decree contained the following words :--""It is ordered as follows,"" and it then set forth the terms of the

Razinamah according to which the plaintiff was to pay Rs. 2,750 to the defendants. The defendants now apply to recover this amount by execution

of the said decree. Various objections are raised by the plaintiff in Second Appeal."" It is first contended that there is no decree at all and even if

there is one it is only a declaratory decree which cannot be executed. It is argued, that according, to the Civil Procedure Code, the Court was

bound to pass a decree in accordance with the Razinamah only with reference to the subject matter of the suit, that there is nothing in the so-called

decree to show how much of the Razinamah referred to the subject matter, that the suit itself was for the declaration that the will was a forgery and

that not only is there nothing in the Razinamah itself to show whether the will was accepted to be genuine or declared to be a forgery, but the

Razinamah suggests that the parties did not consider it necessary to settle that dispute. All this may be conceded. Nevertheless, we are of opinion

reading the decree as a whole, that it embodied all the terms of the Razinamah which were to be enforced, if necessary in execution. We therefore

disallow this contention.

It is next argued that the decree was passed without jurisdiction, because it went beyond the terms of Section 375 of the old Civil Procedure

Code, 1882 according to which the decree should be confined to the subject matter of the suit, and also because the decree directed the payment

of a sum of Rs. 2,750-0-0; which is beyond the pecuniary jurisdiction of the Dr. Munsif''s Court. There is nothing to show that the decree was

passed without jurisdiction. Secondly, if it was passed without jurisdiction on the ground stated, the objection cannot be taken in execution

proceedings. As we have already pointed out, the decree does not state whether the Razinamah was adopted in its entirety as referring to the

subject matter of the litigation. It is probable that the plaintiff abandoned his claim for a declaration of the forgery of the will in consideration of the

reliefs which were awarded to him. In that case it is difficult to say that it is not competent to the Court to embody in the decree those terms in the

Razinamah which formed a consideration for the withdrawal of the plaintiff''s claim. See Appeal against order No. 230 of 1911 on the file of the

High Court. But whether it is so or not it is quite clear the question whether a decree is against the provisions of Section 375 of the old Civil

Procedure Code, 1882, and is therefore erroneous, must be raised by way of appeal, and not in execution proceedings. See The Manager of Sri

Minatchi Devastanam, Madura v. Abdul Kasim Sahib ILR (1907) M. 421. We agree with that decision.

As to the question whether the decree was passed without jurisdiction on the ground that the Dt. Munsif ordered payment of the sum of Rs.

2,750 it may be pointed out that the question of jurisdiction is determined not by the relief awarded but by the valuation of the suit in accordance

with the terms of the plaintiff, see Arogya Udayan v. Appachi Rowthan ILR (1901) M. 543 Madho Das v. Ramji Patak ILR (1894) A. 286 and

Rameswar Mahton v. Dilu Mahton ILR (1891) C. 550. Even if the decree was passed without Jurisdiction the question cannot be raised in

execution proceedings as the objection does not relate to the execution of the decree but affects its substance and validity. See Sudindra v. Budan

ILR (1885) M. 80. This view is also taken by the Bombay High Court in Chintaman Vithoba v. Bajaji ILR (1896) B. 475. The decisions in

Lakshmanaswami Naidu v. Rangamma ILR (1902) M. 31 and Raja of Vizianagaram v. Dantivada Chelliah ILR (1904) M. 84 do not ripply. The

cases relied upon by the appellant''s pleader Muhammad Sulaiman Khan v. Fatima ILR (1889) A. 314 Haji Musa Haji Ahmed v. Purmonand

Nursey ILR (1890) Bom. 217 Indad Ali v. Jagan Lal ILR (1895) All 478 are not in point. The decision in Haji Musa Haji Ahmed v. Purmanand

Nursey ILR (1890) Bom. 217 had reference to the validity of foreign judgments. In Muhammad Sulaiman Khan v. Fatima ILR (1889) A. 314 the

question for decision was whether it was the original decree of the appellate Court or the decree as amended without jurisdiction by the original

court was the decree which ought to be executed. In the case in Imdad Ali v. Jagan Lal ILR (1895) All 478 the defendant died before passing of

the decree and therefore he was not a party to it. In the case in Bhagwantappa v. Vishwanath ILR (1904) Bom. 378 the decision was that

according to the Sections 224 and 225 of the old CPC of 1882 the Court to which a decree is sent for execution was competent to decide

whether the decree was passed with jurisdiction or not and that it was only after a decision in the affirmative that it becomes an executing Court.

That is not a decision therefore that the question can be raised in execution proceedings. We therefore disallow this contention also. The next

question that is argued before us is that the direction to pay enhanced interest in the decree is a penalty and should not be enforced. We see no

reason to think that the term is so unreasonable that it should not be enforced.

We therefore dismiss the appeal with costs.