Sarjoo Prosad, J.:— This appeal is by the decree-holders and arises out of an execution proceeding in which the learned Subordinate Judge executing the decree held that the decree-holders were not entitled to realise in execution the sums claimed by them as due under the decree except for a small amount of interest which, in his opinion, remained unsatisfied on account of the decretal dues. There is also a cross-objection by the judgment-debtors.

2. The facts giving rise to this appeal are that the decree-holders obtained by consent a decree on the Original Side of the Calcutta High Court for a sum of Rs. 26,246 against the judgment-debtors respondents with interest at 6 per cent per annum and also for incidental costs as taxed under the allocatur. The decree further provided for payment in instalments of a sum of Rs. 22,279-12-0 with costs in full satisfaction of the decree. The material terms of settlement are embodied in paragraphs 4 to 7 of the compromise decree. In order to appreciate the points urged, it is necessary to refer in extenso to the terms embodied in the paragraphs in questions:

“4. The defendants will pay the costs of the suit to the plaintiffs' attorneys and a sum of Rs. 1,000 towards part payment of the decretal amount to the plaintiffs in manner following:

(a) Rs. 500 on account of part payment of costs on or before the 30th Falgun 1346 F.S

(b) The balance of the taxed costs on or before the 30th Sravan 1346 F.S or within month of service of the allocatur of taxed costs on the respective attorneys of the adult defendants whichever date is later.

(c) Rs. 1000 towards decretal amount on or before the 30th Sravan 1346 F.S

5. If the defendants will besides payments mentioned in cl. (4) hereof pay the sum of Rs. 20,000 in the manner following with interest on the amount of instalment as stated in cl. (6) hereof the plaintiffs will accept the same in full satisfaction of the balance of the decretal amount herein. All instalments due will be payable to the plaintiff firm Harnathrai Binjrai at Bhagalpur and all receipts signed by them will be sufficient discharge to the defendants for such payment.

(i) Rs. 2000 towards the decretal amount on or before 30th Sravan 1347 F.S

(ii) Rs. 2000 towards the decretal amount on or before 30th Sravan 1348 F.S

(iii) Rs. 2000 towards the decretal amount on or before Sravan 1349 F.S

(iv) Rs. 2000 towards the decretal amount on or before 30th Sravan 1350 F.S

(v) Rs. 2000 towards the decretal amount on or before 30th Sravan 1351 F.S

(vi) Rs. 2000 towards the decretal amount on or before 30th Sravan 1352 F.S

(vii) Rs. 2000 towards the decretal amount on or beforenhe 30th Sravan 1353 F.S

(viii) Rs. 2000 towards the decretal amount on or before 30th Sravan 1354 F.S

(ix) Rs. 2000 towards the decretal amount on or before 30th Sravan 1355 F.S

(x) Rs. 2000 towards the decretal amount on or before 30th Sravan 1356 F.S

6. In case of the defendants failing to pay any of the instalments of Rs. 2000 on or before the due dates of payment hereinbefore stated they shall be liable to pay interest on the amount of instalment in default at the rate of 6 per cent, from the date of default till payment.

7. In case of default of payment in any of the payments referred to in cl. (4) or in default of payment of any two consecutive instalments of Rs. 2000 referred to in clause (5) hereof and interest referred in clause (6) hereof the plaintiffs will be entitled to execute the decree for the entire amount for the time being remaining due under the decree. The plaintiffs will not be bound to accept any instalment so long as any prior instalments remain unpaid.”

3. It is obvious from the above that in case the instalments were regularly paid as agreed to between the parties, the decree-holders accepted to take a sum of Rs. 21,000 with costs in full satisfaction of the decree. It appears that on 30-6-1941, the decree-holders levied Execution Case No. 134 of 1941. In that execution case, they claimed that they were entitled to execute the decree for the entire amount because the terms of settlement had not been carried out by the judgment-debtors. It is not disputed that Rs. 500 on account of part payment of cost was actually paid on the 30th of Phagun 1346 Fasli, but the decree-holders claimed that, although the allocatur assessing the cost had been served on the parties, yet the balance of the cost had not been paid by the judgment-debtors within the time allowed as required by paragraph 4(b) of the compromise decree. The case of the decree-holders was that the service of the allocatur of taxed costs had been duly effected, and yet within one month from the date of the service the balance of costs had not been deposited. The decree-holders further claimed that Rs. 1,000 which was payable towards the decretal amount on or before the 30th of Savan 1346 Fasli, corresponding to the 29th of August 1939, had not also been paid. On these grounds, the decree-holders proceeded to levy execution.

4. It is to be noticed that by the time the execution came to be levied, the first instalment of Rs. 2,000 fell due on the 30th of Savan 1347 Fasli, which equals 17th of August 1940. The judgment-debtors objected to the execution and contended that they had made no default in payment of the dues to the decree-holders as required by the terms of the decree. Their case was that there had been no service of the allocatur of taxed costs on them and hence they could not make any payment as provided in cl. (b) of paragraph 4 of that agreement. Their further case was that they had tendered a sum of Rs. 1,000 to the decree-holders as provided in cl. (c) of paragraph 4. The decree-holders, however, did not accept the same and, on the contrary, referred them to their attorney in Calcutta, who also in turn refused to accept the sum.

5. The learned Subordinate Judge, who dealt with the execution case, after a very careful review of the evidence, decided against the decree-holders and accepted the case of the judgment-debtors on both the points. He found that there was absolutely no evidence to show as to when the service of allocatur of taxed costs on the respective attorneys of the defendants had been made. He also found that there was no default on the part of the judgment-debtors; and the decree-holders, in spite of the tender being made in due time of a sum of Rs. 1,000, had deliberately refused to accept the same.

6. It is important to remember that this decision of the learned Subordinate Judge was passed on 24-7-1944. In the meantime, certain other instalments appear to have fallen due. One was on 7-8-1941, the other on 26-8-1942 and a third on 15-8-1943; and yet another instalment was going to be due on 4-8-1944. The amount due under the above instalments had not been paid evidently because the decree-holders had levied execution of the decree and had not accepted the payment of Rs. 1,000 which had been tendered by the judgment-debtors and had proceeded to execute the whole decree on the allegation of default on their part. When the decree-holders failed to satisfy the learned Subordinate Judge that they had any right to execute the decree on the grounds of default alleged by them, they fell back upon the contention that the above instalments which came to be due during the pendency of the execution case had not been paid; and, as such, in any event, the decree-holders were entitled to maintain the execution proceedings. The learned Subordinate Judge specifically dealt with this contention and rejected it.

7. I may as well quote that part of his judgment since it has an important bearing upon the decision of the appeal:

“The last point urged on behalf of the decree-holder is that the judgment-debtors did not deposit the entire costs of the suit allotted to the decree-holder even after one month of the service of notices under Order 21, Rule 22 of the CPC and that since the institution of the execution case the judgment-debtors have defaulted in making payment of the 2 consecutive instalments of the decretal dues as provided in para 5 of the compromise. So it was contended on behalf of the decree-holder that the decree-holder was perfectly entitled to sustain this execution petition for recovery of the amount which it seeks to recover from the judgment debtors. In my opinion the contention does not appear to be well founded. This execution petition has been filed by the decree-holder on 20-6-1941. By that time only the first instalment of the decretal dues as provided in cl. 5 of the compromise petition which it seeks to recover from the judgment-Sawan 1347 F.S corresponding to 17-8-1940, had fallen in arrear. The instalments falling due on the 30th Sawan 1348, corresponding to the 17th of August 1941, on the 30th of Sawan 1349 F.S, corresponding to the 26th of August 1942 and on the 30th of Sawan 1350 F.S, corresponding to the 15-8-1943 have also undisputedly not been paid.

But on 18-8-1941 the judgment-debtors deposited Rs. 3000 to the credit of the decree-holder towards the costs and decretal dues and on 29-10-41 the judgment-debtors further deposited the sum of Rs. 801 towards the same. The decree-holder has withdrawn these amounts in satisfaction of his dues from the judgment-debtors. The subsequent defaults in my opinion may sustain the execution case but certainly not for the amount that is sought under the execution. I do not take any serious note of the subsequent defaults made by the judgment-debtors because they have been made after the institution of the execution case. I also find that the said default is due to mischief caused intentionally with bad motive by the decree-holder and not by the judgment-debtors because the D.H refused to accept the payment of Rs. 1000 offered by the judgment-debtors on 25-8-1939 without any rhyme and reason and thereby launched them to frivolous litigation.”

8. The finding of the learned Subordinate Judge in effect amounts to this that there was no default even in regard to the aforesaid instalments. He, however, proceeded to pass certain consequential orders even for payment of the instalment which was going to be due on 4-8-1944 and he directed the judgment-debtors to pay the balance of the said dues to the decree-holders within fifteen days from the date of the order and, on their doing so, the execution case was to be dismissed on part satisfaction. The decree-holders appealed against this order of the learned Subordinate Judge. It is not disputed that a sum of Rs. 9,616 was deposited by the judgment-debtors on 31-7-1944 within the time allowed by the Court after giving a set off for a sum of Rs. 384 already standing to the credit of the judgment-debtors. The decree-holders appealed against this decision of the learned Subordinate Judge and in the grounds of appeal they specifically assailed the decision on the pointy namely, in regard to his direction as to the payment of instalments falling due in the course of the execution proceedings and also immediately thereafter. Grounds 15 and 16 of the memorandum of appeal are directed to that object, their contention being that the executing Court could not go behind the compromise decree and alter or amend the same and that it was bound to execute the decree as claimed by the decree-holders and not to substitute, as if it were, a new decree for the agreement arrived at by the parties.

9. When the appeal came to be heard, the only argument advanced by the decree-holders converged on the question of the disputed tender of the sum of Rs. 1,000 payable on 29-8-1939. The other contentions in the grounds of appeal do not appear to have been pressed and at any rate, there is nothing to show in the judgment of this Court deciding the appeal that any of those contentions were put forward. This Court held that the tender was a good tender and there was no default by the judgment-debtors and finally confirmed the decision of the learned Subordinate Judge in these words:

“In the result, I hold that there was a valid tender by the judgment-debtor to the decree-holder who cannot be allowed to take advantage of his own refusal. The order of the learned Subordinate Judge is perfectly correct and must be upheld. The appeal fails and is dismissed with costs.”

10. After this decision of the appeal, it appears that the decree-holders did not take any further step in the execution can they never attempted to maintain the execution proceedings on any other ground whatsoever and allowed the execution case to be dismissed on 17-7-1946. They then levied the present execution on 23-9-1946 leading to this appeal.

11. It is also not disputed now that all the other instalments mentioned in paragraph 5 of the compromise decree have been paid off by the judgment-debtors. Mr. P.R Das appearing on behalf of the appellants has endeavoured to support this execution case on the ground that there was default in payment of the instalments just before and during the pendency of the previous execution case and that the order passed by the executing Court directing the payment of those instalments within a certain time fixed by the Court was entirely without jurisdiction. He also contends that at any rate so far as the payment of interest goes time had not been extended in the previous execution case, and in consequence there was evidently default in payment of the interest which entitled the decree-holders by virtue of paragraph 7 of the compromise decree to levy a fresh execution. He has in support of his contention cited various decisions before us. These decisions, I am afraid, are of no advantage to the learned counsel because in the present case the matter fell to be decided by the executing Court and was actually decided by that Court.

12. The quotation which I have given above from the judgment of the executing Court indicates that on behalf of the decree-holders the question was specifically raised before that Court and that Court held that there was no default on the part of the judgment-debtors and the payment, if any, could not be made because of the conduct of the decree-holders themselves in refusing to accept the valid tender of the sum of Rs. 1,000 due under para 4(c) of the compromise decree. He accordingly directed that the payment should be made within a certain time fixed by him, and in view of the fact that the fifth instalment under the decree was payable almost immediately after the date of the order he made consequential orders in regard to this payment as well so as to adjust the liability of the judgment-debtors. The question whether the decree-holders were entitled to execute the whole decree or any part thereof was a matter which related to the execution, discharge and satisfaction of the decree, and it was well within the competence of the executing Court to decide this question specially when the execution case was sought to be supported on the ground of these alleged fresh defaults during the pendency of the execution case. Mr. Das, therefore, is not justified in contending that it was beyond the jurisdiction of the execution Court to adjudicate on the point and to decide whether or not the decree-holders were on any of those grounds entitled to maintain the execution proceedings.

13. I have already observed that the decree-holders preferred an appeal against this decree and in the grounds of appeal they assailed the decision of the court below on that point, but they appear to have abandoned the point at the time of the hearing of the appeal or at any rate did not consider it worthwhile to press it before the High Court. The decision of this Court is confined mainly to the question of validity of the tender of the sum of Rs. 1,000 by the judgment-debtors. That point was decided, as it ought to have been decided against the decree-holders and in dismissing the appeal this Court upheld the decision of the learned Subordinate Judge as being ‘perfectly correct’. The decision of the learned Subordinate Judge may or may not have been correct on that point but it is now final between the parties and is binding on them as such. It is not, therefore, open to the decree-holders now to take up the question afresh in order to rehabilitate the present execution proceedings. It is well-settled that the rule of ‘res judicata’ applies to execution proceedings and even if a point, which ought to have been raised is not raised at the appropriate stage then it would be deemed to have been decided against the person who was entitled to raise it in the course of the execution proceedings.

14. Here as noticed above the point was specifically raised and decided against the decree-holders. The learned Subordinate Judge in the present case was therefore, right in holding that it was certainly

“not a case of inherent lack of jurisdiction and therefore the observation of Mr. Singh quoted in extenso in an earlier part of this judgment to the effect that the decree-holders were not entitled to realize the large amount mentioned in the decree by reason of defaults in payment of the 1st four instalments was a perfectly valid order and cannot be treated as null and void as being an order passed without jurisdiction.”

15. The order of the learned Subordinate Judge in the previous execution case regarding the deposit of the first four instalments having been duly carried out and the deposit under the fifth instalment also having been made within time it cannot be now held that there was any default on the part of the judgment-debtors in paying those amounts. The decree-holders are precluded from agitating the point afresh in this execution case.

16. The next question which then arises is about the payment of interest on the instalments in respect of which there is alleged to have been default. The decree-holders claim that they are entitled to this interest from the date of default up to the date of repayment at the rate of 6 per cent, per annum as provided in para 6 of the compromise petition. It is urged that the order in the previous execution case did not in any manner curtail or affect this right of the decree-holders and reliance has been placed upon paragraph 7 of the compromise petition wherein it is provided as contended by the decree-holders that they were entitled to realise the decretal amount not only on default of two consecutive instalments referred to in paragraph 5 but also on default of payment of interest mentioned in paragraph 6 of the compromise decree. The learned Subordinate Judge in this case that the appellants had no right to execute the decree on this account. It must be observed that paragraph 7 of the compromise decree is somewhat ambiguously worded. In any case the court below rightly observed that after the deposit had been made by the judgment-debtors on 31/7/1944, it was open to the appellants to object in the previous execution case that the entire amount had not been deposited or, in the alternative, to proceed to execute the decree for the amount of interest payable under the first four instalments.

17. But the decree-holders did not do so; rather it appears, as pointed out by the court below, that subsequently they withdrew the entire amount deposited by the judgment-debtors without any objection as to the sufficiency of the deposit and then allowed the execution case to be dismissed. The court below, however, held that although this may not entitle the decree-holders to execute the decree yet they would be entitled to recover this amount of interest which actually became due and payable to them. The judgment-debtors have, therefore, preferred a cross-appeal against this part of the decision of the learned Subordinate Judge. The question whether interest is or is not payable to the decree-holders on account of the alleged default in regard to the first four instalments again turns upon the question whether there has been actually any default by the judgment-debtors. The judgment-debtors, therefore, contend that it having been found by the court below that there was in effect no default in payment of these instalments and the court having granted time to pay these instalments within which the instalments were paid, there was no interest due to the decree-holders on that account.

18. According to their interpretation of the compromise decree it is suggested that there being no default in payment of these instalments no interest could be recovered. Paragraph 6, however shows that on the defendants failing to pay any of the instalments of Rs. 2,000 on or before the due dates of payment herein before stated they shall be liable to pay interest on the amount of instalments in default from the date of default till payment at the rate of 6 per cent. There may be some force in the contention of the decree-holders that this interest was payable to them. But the point again seems to be concluded by the result of the previous execution case and the decision thereunder. The decree-holders should have claimed to recover this interest in that execution case. They not having done so and having allowed the execution case to be dismissed on part satisfaction as directed by the Court, it seems to me that they cannot levy a fresh execution on that account and recover the amount of interest if any, in the present execution case. These were questions to be considered and decided in the previous execution case and a fresh execution would not lie on that ground. So far as the other instalments go they have been already deposited as held by the Court and admitted by the parties.

19. Mr. Untwalia on behalf of the decree-holders has challenged the observation in the decision of the court below that the amount deposited in the previous execution case had been withdrawn by the decree-holders. There is material to substantiate this challenge, but whatever the position may be, the decree-holders would be entitled to withdraw this amount if it is still lying in deposit. The execution case therefore, out of which this appeal arises is misconceived and, in my opinion, was rightly dismissed by the court below so far as the major portion of the claim was concerned. In regard to the claim for interest also the case stands on exactly the same footing and should also have been disallowed. The appeal is without any merit and should be dismissed with costs and the cross-objection should be allowed.

20. Ramaswami, J.:— I agree.

C/D.H

21. Appeal dismissed.