Courtney-Terrell, C.J:— The facts which have given rise to this petition in civil revision are, in so far as they are material to our decision, as follows: The Maharajadhiraj of Darbhanga (hereinafter called the Maharajadhiraj) was a creditor of Maharaj Kumar Gopal Saran Narayan Singh of Tikari (hereinafter called Tikari as that form was thorough out used in the course of argument) for a sum of money amounting to 34 lakhs of rupees secured by a certain mortgage deed. He brought a mortgage suit No. 25 of 1921 against Tikari as defendant first party and a number of other persons whose names it is not necessary to mention as defendants second party, Saiyida Khatun, the wife of Tikari (hereinafter called the Kumar Rani) as defendant 13 and others.

2. A compromise was executed on 3rd February, 1923. The terms of the compromise were that there should be a preliminary mortgage decree for 34 lakhs of rupees which Tikari might pay off by instalments. If at any time the arrears of instalments due should exceed five lakhs, the Maharajadhiraj might apply for a final decree for sale but if the provided instalments were maintained, the Maharajadhiraj was not to make an application for a final decree until March 1935. The terms of the compromise contemplated that Tikari might sell the equity of redemption of the mortgage and apply the purchase money to the payment of the mortgage debt. On 12th April, 1928,. Tikari conveyed the equity of redemption in the Jehanabad Circle which was part of the mortgaged property, to the Kumar Rani, defendant 13 in the mortgage suit, and the Kumar Rani covenanted to pay 28 lakhs to the Maharajadhiraj so as to discharge the mortgage debt to that extent. On 29th. March 1930, Tikari conveyed the bulk, of the estate to the Rani, the wife of the Raja of Amawan. The consideration for this conveyance was that the Rani should pay off certain debts of Tikari amounting in all to 10 lakhs, and including three lakhs and sixty-three thousand odd, the balance of the mortgage debt to the Maharajadhiraj. She also covenanted to pay to Tikari an annuity. As a result of these transactions, Tikari still remained under his liability to Darbhanga but the Kumar Rani and the Rani of Amawan had covenanted with Tikari to discharge his liability to the Maharajadhiraj. On 27th April, 1930, the Kumar Rani surrendered the Jehanabad Circle which had been conveyed to her by Tikari to the Rani of Amawan. It will be remembered that the Kumar Rani was a defendant in the mortgage suit, and the Rani covenanted to indemnify the Kumar Rani in respect of any liability under which the Kumar Rani might he by reason of the mortgage decree. In the year 1931, there were transactions between the Maharajadhiraj on the one side and the Raja of Amawan and the Rani of Amawan on the other. They were as follows: On 15th June, 1931, the money still due to the Malwajadhiraj on the agreement of compromise was Rupees 33,84,936. The Maharajadhiraj assigned the benefit of his rights under the preliminary decree to the Raja of Amawan. As a term of the assignment Amawan paid Rs. 1,54,936 in cash and gave to the Maharajadhiraj a zurpeshgi thika lease of Amawan property for 17 years in order to satisfy the amount of the indebtedness under the compromise out of the profits of the estate during that period. At the same time and by the same deed the mortgage debt was reduced by Rs. 2,30,000. On 15th August, 1931, the Maharajadhiraj entered into an arrangement with the Rani by which, she assigned the zurpeshgi thika lease granted to him by Amawan to the Rani and the Rani in exchange gave him a lease of her own property.

3. In November 1933, the following steps were taken in the mortgage suit. On the 7th, Amawan applied to have the decree which had been assigned to him made final. On the 8th, that is to say simultaneously, Tikari applied for an order to record full satisfaction of the decree and on 1st December the Kumar Rani made a similar application.

4. The contention on behalf of Tikari and his wife was that as an assignee of the benefits of the preliminary decree, Amawan was really a mere farzidar for his wife, the Rani, and that by reason of the transactions between Tikari and the Kumar Rani with the Rani of Amawan she had undertaken with them to satisfy the mortgage decree and that she had in fact done so by paying through her husband Amawan the sum of Rs. 1,54,936 and by giving him a thika zurpeshgi of her own properties and that the thika lease which Amawan had granted to the Maharajadhiraj in part satisfaction of the decree subsequently exchanged by the Maharajadhiraj for a thika lease of the Rani of Amawan's property was a mere subterfuge to cover the substantial transaction which was in fact the lease by the Rani of her own properties in satisfaction of the said preliminary decree, and that the reduction in the amount of the mortgage debt was for the benefit of the Rani. They contend that Amawan merely obtained an assignment of a decree which had already been satisfied, so that nothing remained to be assigned. The Raja of Amawan, on the other hand, contended that the applications by Tikari and his wife to record satisfaction of the preliminary decree were out of time and barred by limitation, and he urged by petition that before the Court should enter into questions of fact, the question of limitation and the question of the maintainability of the applications by Tikari and his wife should be decided as a preliminary point. The Subordinate Judge accordingly heard arguments on these matters. He decided that the applications were not barred by limitation and were maintainable under O. 23, R. 3 of the CPC, and also decided that at a convenient time he would investigate the allegations of fact. From this decision the Raja of Amawan comes to this Court.

5. It is conceded on his behalf that if the Subordinate Judge was at liberty under O. 23, R. 3 to entertain the applications, the allegations of fact by the opposite party must be investigated. But it is contended (a) that the applications cannot be entertained under that order and (b) that the applications could only be entertained under O. 21, R. 2, and in that case they are barred by limitation. It is further suggested that in the exercise of our discretion we should interfere to prevent the investigation of fact which it is said will involve an immense inquiry and the evidence of over a thousand witnesses, and that considerations of general convenience should induce us to place the opposite party in the position that they must appeal to the highest tribunal on the propriety of our decision before such an inquiry should be allowed to proceed. It is contended on behalf of the opposite party (a) that the Subordinate Judge has decided upon the extent of his jurisdiction by examination of the orders of the Code of Civil Procedure and that, whether the decision upon the extent of that jurisdiction be right or wrong, the Court has no jurisdiction to interfere by way of revision. This is urged as a preliminary point; (b) that the decision of the Subordinate Judge was right upon the merits, that the applications are entertain able by him under O. 23, Rule 3, that in any case they are not governed by O. 21, R. 2; and (c) that even if they are governed by O. 21, R. 2, the Subordinate Judge is not precluded from hearing them; the prohibition contained in Cl. (3) of that rule applies only to a Court acting in execution, the applications are not in execution proceedings and are not barred by limitation.

6. We were given the benefit of a lengthy argument in support of the contention of the opposite parity that we had no jurisdiction under Section 115 of the CPC, to entertain the petition of the Raja of Amawan; but this must fail. It amounts to a contention that a Subordinate Court is the sole and final Judge of the ambit of its own jurisdiction. It is certainly true that the High Court will not interfere in revision with a decision on the merits even if the lower Court should err both in law and in fact provided always that such Subordinate Court had jurisdiction to entertain the dispute between the parties. But if it be contended that the Court had no jurisdiction whatever to entertain the matter, this Court must listen to the contention and if it should find that the lower Court has made a mistake as to the extent of its jurisdiction, it may then interfere and this is particularly so when the lower Court, in determining the ambit of its own jurisdiction, construes a legislative enactment. We were referred to two cases as showing that the Courts of Allahabad and of Patna have taken differing views upon this matter. An examination of the cases however does not disclose any such difference, although it may be the case, as Sir Tej Bahadur has informed us, that in practice applications in revision are less easily pressed in Allahabad than in this Court.

7. The case of 1923 All 392(1) came before a Full Bench and a question arose as to the construction of O. 21, R. 89 of the CPC. The Allahabad Court took a view of the construction which differed from that adopted by this Court and by the Court of Madras. It is true that Banerji, J., who presided, seemed to be of opinion that the Subordinate Judge had adopted a certain construction (which in fact was in accordance with prior decisions of the Allahabad High Court) and said that whether or not that decision was right, it could not be interfered with in revision. Piggott, J., however held that the Subordinate Judge, having taken a view which was in accordance with reported decisions of the High Court to which he was subordinate, could not be said to have acted illegally or with material irregularity whether or not the view of the High Court which was followed was right or not. Walsh, J., was of opinion that the earlier decisions of the High Court with regard to the construction of the rule were erroneous and he agreed with the construction adopted by the Patna and Madras Courts. I am of opinion that Banerji, J., went too far in his expression of opinion. Had he confined himself to the view expressed by Piggott, J., I would respectfully have agreed with the decision in so far as it relates to the exercise of power in revision, notwithstanding that I would support the view of the Patna and Madras Courts on the construction of the particular enactment then under discussion. The case is of little, if any, assistance. Save in so far as the expression of opinion by Banerji, J., is concerned, the decision of the Court does not conflict with the opinion expressed by Mullick, J., in 1919 Pat 501(2):

An erroneous decision on a question of law or fact, after jurisdiction has once been legally assumed, would not be a ground for interference under Section 115 of the CPC, but if the decision is the very basis and foundation of jurisdiction in its limited sense as distinguished from powers, it at once comes within the purview of the section. The judgment of their Lordships of the Privy Council in 1917 PC 71(3), is, in my opinion, authority for this view.

8. Indeed learned counsel for the opposite party was constrained to admit that if a particular jurisdiction originates in some special law or enactment, the High Court can always interfere in the sense that it can construe the law and in accordance with that construction compel the lower Court to exercise such jurisdiction or to refrain from exercising the jurisdiction if not warranted by the law or enactment in question. In this case it is contended on behalf of the petitioner that the Subordinate Judge did not possess the jurisdiction which he purported to exercise, and although it is admitted that if the jurisdiction was properly exercised, this Court could not interfere in revision with the decision arrived at, whether right or wrong. I therefore now approach the merits of that contention. The argument of the petitioner may be put thus. It is contended that on the allegation of the opposite party the satisfaction of the Maharajadhiraja's decree could not be entertained in the preparation of the final decree because it had not been recorded as provided by O. 21, R. 2. Further that considered as an application to record satisfaction of the decree it was out of time under Article 174 of the Limitation Act. Mr. Das on behalf of the petitioner conceded that if the proceedings were not governed by O. 21, then O. 23, R. 3 would apply as the Subordinate Judge has held and that his petition for revision must fail. The real merits of this petition are therefore reduced to a very simple point which I am of opinion presents no difficulty. Notwithstanding the authority in what is known as Piran Bibi's Case(4) to which I will refer later, it will be noted that O. 21 deals with “execution of decrees and orders.” R. 2, O. 21, is as follows:

2. (1). Whether any money payable under a decree of any kind is paid out of Court or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree and the Court shall record the same accordingly; (2) the judgment-debtor also may inform the Court of such payment or adjustment and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly; (3) A payment or adjustment which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decrees.

9. The words “of any kind” in para. (1) were introduced in the amendment Code of 1908 in order to get over conflicts between various High Courts on the question of whether or not the mere word “decree” as it originally stood referred only to decrees for the payment of money. It has been argued that the word “decree” having reference to the definition in S. 2 of the Code includes preliminary decrees. In my opinion, this view is not sound. The Code, in O. 21, is dealing with execution and the words “decree of any kind” mean, in this connection a decree of any kind capable of execution. This view is supported by the qualifying words “the Court whose duty it is to execute the decree.” There can hardly be a duty to execute a decree which is not executable. Furthermore throughout the order the persons in the earlier stages of the proceedings referred to as plaintiff and defendant (see e.g, O. 34, Rr. 4 and 5 and Form 6, Appendix D) are at this stage referred to as decree-holder and judgment-debtor, respectively. It has long been held that proceedings to obtain a final decree are not proceedings in execution. But lastly Sub-R. (3) forbids recognition of unrecorded payments by “any Court executing the decree.” It is important to notice the history of this sub-rule the Codes of 1859 (S. 206) and 1877 (S. 258) provide that a payment or adjustment made out of Court should not be recognized by any Court “executing the decree” unless it had been certified to that Court. In 1879 the Code of 1877 was amended and the words “executing the decree” were deleted and this was followed in the Code of 1882. The result was that differences arose between the various High Courts upon the question whether a suit would lie to enforce an uncertified agreement of adjustment of a decree against a judgment-debtor.

10. It was held in 11 Bom 6(5), that such a suit would not lie which was a manifest injustice. The judgment of the Chief Justice in that case shows that but for the amendment by which the words were deleted he would have held that the prohibition extended only to the Court acting in execution. Accordingly in the year 1888 the section was again altered by the restoration of the words “executing the decree” and this re-amendment was followed in the present Code. The prohibition therefore extends only to the Court which executes the decree. We were referred to the case of 1918 Cal 472. In that case having obtained a preliminary mortgage decree, the plaintiffs obtained ex parte a subsequent absolute decree no payment having been made. The defendants then got the decree absolute set aside for non-service of notice and the case was restored. The defendants objected that the plaintiffs had amicably received the decretal amount and had granted a receipt and said that the decree absolute could not be passed. The Court held that as the payment had not been certified under the provisions of O. 21, R. 2, it could not be recognised. The satisfaction relied upon by the defendants in their objection was that the payment relied on had been made more than 3 years previously. The learned Judge (Fletcher, J.) said:

It is said that any Court not being an Executing Court can recognize an uncertified payment made out of Court. I am not prepared to agree with that. It seems to me that the whole of the provisions of the law providing a certification either by the decree-holder or by the judgment-debtor within the period within which the certification is to be made would be rendered nugatory if a defendant in a suit, years after, when the evidence would neither be afresh nor perhaps available, is allowed to come forward and say that he has satisfied this preliminary decree out of Court three years ago by paying the money to the plaintiff. It seems to me that it will be opposed both to the terms of the Code of Civil Procedure and also to the provisions of the Limitation Act.

11. This was a case under O. 34, R. 5, and not as in the case before us of a compromise decree. In any case I venture to disagree with the decision on this point and I am unable to follow it. An attempt was made on behalf of the petitioner to argue that once a preliminary decree has been obtained, the rights of the parties are finally decided and by reason of O. 34, Rules 4 and 5, the preparation of the final decree is a purely ministerial act which follows automatically and should be considered as a stage of execution. I am unable to agree with this contention and it has no force whatever in the case of a compromise which itself sets forth that a decree absolute is to be made as a preliminary to execution. Both contentions were dealt with by this Court in 5 Pat LJ 672(6), in which it was held that O. 34, had no application to a compromise decree. Further the application to make a decree absolute is not a proceeding in execution and O. 21, R. 2, Cl. (3), does not prevent the Court from recognising an uncertified payment or adjustment made out of Court. It was argued that Jwala Prasad, J., in that case had approved of the decision in 1918 Cal 472. I am unable to agree. Such expression of approval as appears on p. 677 of the report was of a limited character and did not apply to the proposition in support of which the case was relied upon. The learned Judge said:

Clause (3) of R. 2, O. 21, restricts the application of the rule only to the Court executing the decree. Hence payments made out of Court in respect of a mortgage decree can be recognized in a proceeding instituted by the decree-holder for obtaining an order absolute or a final mortgage decree. This is but just and equitable. The decree-holder is not entitled to a final decree for a higher sum than what is actually due to him at the date of making that decree. This necessarily involves an investigation into allegations of payments out of Court on account of the decree.

12. The agreements between the parties in this case made it clear that the preliminary decree on the compromise should not be executed until a final decree had been obtained. It is true that the agreement provides for payment in various ways but it nowhere specifies that the parties are not at liberty to effect an arrangement by which the decree is to be satisfied in some other manner. As I have already said, it was conceded by Mr. Das that, if O. 21, R. 2, has no application, the application is within the jurisdiction of the Subordinate Judge under O. 23, R. 3, and he was right in making that concession. The word “suit” in that rule is not used in any narrow sense but having regard to the division of the subject-matter in the various orders and rules the word “suit,” if applied to the proceedings from the beginning of the plaint up to the time when an executable decree has been obtained, this sharp division of the proceedings at a point of time is, with different conditions as to proving satisfaction applying to the parties on either side of the dividing line, not only shown by the arrangement of the Code itself but is in accordance with good sense and practical convenience. An executable decree can be sold and passed to other people after a successful plaintiff has left the scene, and it is not unreasonable that the provisions for recording proof of satisfaction should be more severe in the case of a decree than in that stage of the case where the parties are still before the Court.

13. But there is another aspect of this matter which is most important. The jurisdiction in revision is limited to cases in which there is no appeal or other suitable regular remedy. If the entire case is dealt with by the Subordinate Judge and a decision arrived at after investigating the facts, either party will have an unlimited right of appeal. Moreover, it is the case of the petitioner that a great number of witnesses will have to be called if the question of fact is to be decided. We were informed that the petitioner proposes to call over a thousand of such witnesses. Whether this is his genuine intention, and if so, whether he will be allowed to do so are matters which do not arise at present; but in any case it is surely better that such evidence shall be heard while it is still available. If we were to accede to the petition, the opposite party would be obliged either to submit to execution of the mortgage decree against them or to appeal to His Majesty in Council. In the latter case if our view should be held to be erroneous, the inquiry will have to be conducted some years hence when the many witnesses said to be necessary will either have died or have forgotten the matters in controversy. Considerations of convenience are in any case in favour of holding the inquiry at an early date. I would therefore dismiss this petition with costs. One set of costs only will be paid to opposite parties Nos. 1 and 8 and we fix the hearing fee at a hundred and twenty gold mohurs.

14. Dhavle, J.:— I agree that this application should be dismissed with costs. A preliminary objection was taken on behalf of the opposite party that as the lower Court is obviously the only Court to which applications relating to the mortgage suit can be made and as, further, the lower Court must have power to deal with the applications made on behalf of the opposite party under O. 21, R. 2, if not (as the lower Court has held) under O. 23, R. 3, there was no question of jurisdiction involved so as to enable this Court to entertain the present application under Section 115 of the CPC. But the learned Subordinate Judge has held that he has jurisdiction under O. 23, R. 3, to deal with the applications made to him, and this position is still contested by the petitioner in revision. Nor was it conceded below, as has since been done here, that failing O. 23, R. 3, the applications would come within O. 21, R. 2. Assuming moreover that the jurisdiction of the lower Court is referable to O. 21, R. 2, the adjustment and full satisfaction alleged by the opposite party is dated more than 90 days before their applications to the lower Court and the petitioner before us is prima facie entitled to raise the question whether the lower Court had jurisdiction in the circumstances to entertain those applications. The mere fact that the Subordinate Judge has decided that he has jurisdiction under O. 23, R. 3 to do so cannot prevent us from examining the jurisdiction, though there can be no interference in revision with conclusions of law or fact, whether right or wrong, in which the question of jurisdiction is not involved. The meaning of the word “jurisdiction” in Section 115 of the CPC, has been the subject of much judicial discussion. Questions of jurisdiction do not arise merely on “propriety of forum,” as Rankin, J., put it in 1920 Cal 305(7), for (as the learned Judge further observed in the same case):

Jurisdiction to try a suit does not mean jurisdiction to do anything whatever by order made in the suit; if it did, an exception for material errors in procedure (strictly so called) will be almost ludicrous.

15. In 20 Cal 8(8), an order passed by a Court of unquestioned jurisdiction to execute a decree was set aside by the High Court under Section 622 of the CPC, 1882, and in upholding this decision their Lordships of the Judicial Committee said that the Subordinate Judge had declined to exercise a jurisdiction which he had (viz., jurisdiction to confirm the execution sale under S. 312), and exercised one which did not belong to him (viz jurisdiction to set the sale aside at the instance of the auction-purchaser in circumstances not covered by S. 313), and consequently his judgment was liable to be reviewed by the High Court under Section 622 of the CPC.

16. In 1917 PC 71, their Lordships of the Judicial Committee upheld the view of the Madras High Court that the District Court had no jurisdiction to pass certain orders under Section 10 of the Religious Endowments Act, 1863; and this was in a case in which there was no question at all about “propriety of forum.” The plainly supports the view taken in 1919 Pat 501, and followed in Madras, that:

The Court's decision upon the point whether the applicant has the necessary legal character to file an application under O. 21, R. 89 is clearly a question involving jurisdiction. An erroneous decision on a question of law or fact after jurisdiction has been once legally assumed would not be a ground for interference, but if the decision is the very basis and foundation of jurisdiction in its limited sense as distinguished from powers, it at once comes within the purview of the section.

17. The view of Banerji, J., in the Full Bench case of 1923 All 392, that in similar;, circumstances the lower Court had jurisdiction, rightly or wrongly, to decide the question whether a party was entitled to apply under O. 21, R. 89, and that therefore it was not open to the High Court to interfere with it in revision, was not shared by Piggott and Walsh, JJ., who with Banerji, J., decided that case. I am therefore unable to see any sufficient reason in that Full Bench decision to doubt the correctness of the view taken in this Court. The preliminary objection must therefore be overruled. It was also urged on behalf of the opposite party that revisional interference is discretionary and is not as a rule exercised where the petitioner has another remedy open to him (such as a regular appeal from the final decree that may be passed in the case), unless irreparable injury is threatened. But these considerations cannot be urged as objections in limine, and prima facie the enquiry that the lower Court has decided to make at the instance of the opposite party would be an intolerable waste of time and money (unless of course it is made with jurisdiction), since they propose, so we are informed, to call no less than 150 witnesses in support of their allegations of farzi and fraud, to say nothing of the fact that the number proposed by the petitioner exceeds 1000.

18. It is thus plainly necessary that the petitioner should be heard on the question of jurisdiction. It was contended on behalf of the petitioner that the only provisions under which adjustments of suits and decrees can be dealt with by the Courts are to be found in O. 23, R. 3 and O. 21, R. 2 of the CPC, that the former of these provisions does not apply to the case, and that the lower Court would have had no authority to deal with the matter under O. 21, R. 2 either, by reason of the failure of the opposite party to apply within 90 days of the alleged adjustment. Before dealing with these contentions and the cases cited in support, it is desirable to observe that the decree on the basis of which the petitioner moved the lower Court to pass a final decree for sale of the mortgaged property is based on a compromise, which expressly calls it a preliminary mortgage decree and provides that it is not to be made final until a specified date over 12 years later, unless interest (to be paid annually on 31st January), and compound interest be in arrear to the extent of 5 lacs or more, in which case the mortgagee is to be entitled to get a final decree for the entire amount of principal, interest and compound interest and to realize it by the sale of the mortgage properties. Payment was to be in sums of not less than Rs. 10,000, at a time. The compromise also gives the mortgagor liberty to sell or grant a permanent mukarrari of any of the mortgaged properties and pay the entire sale proceeds to the decree-holder, subject to certain restrictions as regards the price, and to the further restrictions that in such cases the mortgagee is to have the first refusal. It also provides that all payments of interest or principal will be made by deposit in the Imperial Bank, Patna Branch, or in such other Bank as may be agreed upon by both parties in writing, to the credit of the plaintiff. The law is clear and there is also no dispute that such a decree does not come under O. 34, R. 4, and that accordingly O. 34, R. 5, is not applicable to the case. It is also settled law that proceedings for obtaining a final decree are proceedings in the suit and not proceedings in execution. It has accordingly been held in some cases (such as 136 IC 732(9), that the provisions of O. 21, R. 2, have no application to payments and adjustments between the preliminary and the final decrees in mortgage suits, the stage reached in the present case. This is contested on behalf of the petitioner on the wording of the rule. The opening words are: “Where any money payable under a decree of any kind is paid out of Court,” and the petitioner points out that money may well be paid in accordance with a preliminary decree, and urges that money so paid is “money payable under a decree.”

19. The rule goes on to provide for certification to “the Court whose duty it is to execute the decree,” and it is contended on these words that the Court referred to need not be a Court which is actually engaged in executing the decree for the expression merely indicates the forum (as given in section 38) without requiring that the stage of execution should have reached. It seems to me that the contention is not without force. It is true that O. 21 deals with the execution of decrees and orders, but the first two rules are headed “payment under decree,” and the next seven “Courts-executing Decrees,” before we come to a group of 16 rules under the heading. “Application for Execution.” The first rule provides three different modes of paying money payable under a decree, and one of these modes is payment “out of Court to the decree-holder,” which may obviously be done by the judgment-debtor before the decree-holder takes out execution and incurs costs only to charge them to the judgment-debtor himself. If such payments are made by the judgment-debtor and certified by the decree-holder under R. 1 or recorded as certified at the instance of the judgment-debtor under R. 2, this would effectively stop execution. It is true that even after a preliminary decree under O. 34, Rule 4, the parties are referred to in the next rule as plaintiff and defendant, while O. 23, R. 2, speaks of decree-holder and judgment-debtor, but the definition of these terms in S. 2 of the Code do not restrict them to executable decrees. It may therefore be conceded that the payments dealt with in O. 21, Rr. 1 and 2 need not be due under an executable decree, and that money may be “payable” within the meaning of these rules, even under preliminary decrees in cases where the final decree alone makes execution possible. The petitioner's contention that the expression “the Court whose duty it is to execute the decree” merely indicates the Court to which certification is to be made and does not imply executable decrees is supported by 54 IC 137(10). On the words of O. 21, R. 2(1) and (2) it may thus well be that the mortgagor is entitled to apply under Cl. (2) and get his payments recorded.

20. In the present case it is now too late to make any such application to say nothing of the fact that the opposite party do not claim to have brought about the adjustment and full satisfaction alleged by any dealings of theirs with the mortgagee. But does it follow that the rule prevents the opposite party from urging the adjustment as a bar to the passing of the final decree? Cl. 3 definitely provides that a payment or adjustment, which has not been certified or recorded as provided in the first two clauses shall not be recognised by “any Court executing the decree,” an expression definitely implying actual execution. The lower Court which has been asked to pass the final decree is however not “a Court executing the decree” and on the wording of the clause it is difficult to see how it can be read as standing in the way of the opposite party when they seek to show that no final decree ought to be passed because the mortgagee has been paid off in fact and his transferee, the petitioner before us, has taken nothing by the assignment of the claim under the preliminary decree. It has however been urged that the contrary has been held in several cases, beginning with 1918 Cal 472. That was a case in which the mortgagors set up against the passing of the final decree a plea that they had paid the amount awarded by the preliminary decree out of Court to the plaintiffs more than three years previously. The trial Court accepted the plea, but the Court of first appeal held that the payment could not be recognised because it had not been certified under O. 21, R. 2. This was upheld in second appeal on the ground (as I read the decision) that O. 34, R. 5, which applied to the case, leaves the Court rip discretion except to follow the statutory form of the decree when no payment has been made into Court as mentioned in the rule. Fletcher, J., who gave the judgment of the Court, went, on to observe that:

The only other matter that there can be is that the Court may hold that the suit has been, adjusted under O. 21, R. 2

and as to this he declined to accept the mortgagor's contention that it is only by the executing Court that an uncertified payment made out of Court can be recognised. The reason was that the learned Judge regarded the contention as opposed both to the terms of the Code of Civil Procedure and also to the provisions of the Indian Limitation Act. It may perhaps be doubted whether he really intended to hold that O. 21, R. 2 had any application in such cases, or whether he did not merely mean if the appellants before him were to receive the benefit of payments made otherwise than in strict conformity with the terms of O. 34, R. 5, they could only be permitted to do so by proving compliance with Order 21, R. 2 as a whole. He refers to reasons given in a judgment of his own in another case, but these are not available to us. The learned Judge makes no reference to the previous decisions of the Calcutta High Court in which it was held even under the law as it stood before the amendments of the Code of Civil Procedure and the Transfer of Property Act in 1908 that proceedings' for obtaining an order absolute for sale were not proceedings in execution, and that payments in accordance with a decree under Section 88 of the Transfer of Property Act, (often called the decree nisi) though not certified under Section 258 of the CPC, Could be taken into consideration in such proceedings: see the cases referred to in 8 CWN 102(11) and also 7 IC 625(12) though in this latter case the point actually decided arose after the order absolute. There had been some conflict of judicial opinion before 1908 on the question whether proceedings for obtaining the order absolute for sale were proceedings in the suit or proceedings in execution, and the amendments of 1908 made it clear beyond dispute that they are proceedings in the suit itself.

21. There is thus even less reason now than before for holding that O. 21, R. 2(3) bars the recognition of uncertified payments in proceedings for obtaining a final decree under O. 34, R. 5. This was pointed out in 5 Pat LJ 672, a case which actually related to a preliminary mortgage decree based on consent allowing instalments and thus not coming under Order 34, R. 5. The point arose rather more directly in 1917 All 119(13), where it was held that limitation for applying for a final decree in pursuance of a preliminary mortgage decree awarding instalments runs not under Article 182 but under Article 181 of the Limitation Act, “from the time when default was made” in the payment of the instalments fixed. This necessarily implies the recognition of instalments previously paid even if they should not be certified under O. 21, R. 2(3). The references to 1918 Cal 472 in 1919 Mad 792(14) and 120 IC 72(15), support the view that I am inclined to take of that decision; and in any event it is not in point in the present case where we are dealing with a preliminary decree not coming within O. 34, R. 4. Another case cited before us is 1928 Rang 194(16), where the preliminary decree was based on consent. That however was a case not of any payments under or satisfaction of the preliminary decree, such as we have in the case before us, but of an agreement to extend the time given by the preliminary decree, which (as the learned Judges pointed out) could not be regarded as an adjustment of the suit within the meaning of O. 23, R. 3. It seems to me that even if O. 34, R. 5 had applied to the case before us, O. 21, R. 2(3) would have had no application, and that as laid down in 5 Pat LJ 672 the adjustment and satisfaction alleged by the opposite party must be taken into account before passing the final decree, notwithstanding any expressions in the first two clauses of O. 21, Rule 2, which may not unreasonably be regarded as applicable to such a case. That the preliminary decree does not require payment into Court does not affect the inapplicability of Cl. 3, O. 21, R. 2 to the present proceedings for a final decree.

22. An attempt was made in the concluding stages of the arguments to show that the satisfaction of the preliminary decree was a matter for the executing Court only in view of the terms of Section 47(1) of the CPC. But once it is conceded that proceedings for obtaining a final decree are not proceedings in execution, the provision referred to becomes irrelevant at the present stage, for it speaks of the Court executing the decree and thus can only be invoked after a decree capable of execution has been passed.

23. The petitioner's contention that Order 23, R. 3 has no application is based on the fact that this provision deals with the compromise (or satisfaction) of a suit, in accordance with which the Court is required to pass a decree. It is urged that in the present case a decree has already been passed and that adjustment or satisfaction of the decree will not constitute a compromise of the suit. But the preliminary decree did not ever purport to end the suit, and though it is possible to imagine adjustments of such a decree which are not adjustments of the suit (such as the agreement for extension of time in 1928 Rang 194, it does not by any means follow that such payments and satisfaction as we have to deal with in the present case do not go to end the suit itself. The decree before us expressly contemplates a final decree for the complete disposal of the suit, and in that respect differs from such decrees as those in 34 Cal 886(17), 1923 Cal 626(18) and 1927 All 167(19), which required no final decrees and could be put into execution without any further application in the suit itself. It is not pretended that in the present suit, execution can be taken out for realizing the debt from the mortgaged property before obtaining a final decree; and this shows pretty clearly that the suit was not really terminated by the preliminary decree. It is only the final decree that will completely dispose of the suit, and there is nothing in the language of O. 23, R. 3, against a compromise or other satisfaction on which to base a final decree. The amount, if any, be outstanding for which the final decree is to be passed will obviously depend not merely on the sum fixed by the preliminary decree together with interest and compound interest, but also on such sums (or satisfaction in other ways) as the mortgagee may have received from the mortgagor or other persons liable to pay the mortgage money. R. 4, O. 23, provides that nothing in the order shall apply to any proceedings in execution of a decree or order; and it seems to me that this, taken with the heading of O. 21, “Execution of Decrees and Orders,” indicates clearly enough up to what stage O. 23, R. 3, will extend in suits in which a preliminary decree has to be followed by a final decree. Even where there is but one decree in a suit, it has been held with reference to O. 23, R. 3, that the term “suit” has not been used in the Code of Civil Procedure in its narrow sense as being terminated by the decree of the first Court, and that it will include so late a proceeding as a proceeding for setting aside a sale in execution: 1921 Pat 107(20), because it is not itself a proceeding in execution. O. 23, R. 3, empowers the Court, where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, to order such satisfaction to be recorded, and to pass a decree in accordance therewith. The final decree to be passed in favour of a mortgagee is merely a consequence of the mortgagor's failure to pay the amount fixed by the preliminary decree; and it is plain that to the extent to which the mortgagee has been paid, he cannot have a final decree.

24. It thus seems clear that there is nothing in O. 23, R. 3, to make it inapplicable to a suit after the preliminary decree and before the final decree. Even if the contrary were to be held, I entertain no doubt that in proceeding upon a preliminary decree which is based on a compromise and therefore does not come within O. 34 of the Code, the Court will have inherent jurisdiction to take payments and satisfaction after that decree into account before passing the final decree. As a matter of fact, there is a decision of this Court: 1917 Pat 577(21) in which it was held that though Order 34, R. 5, contemplates that all payments upon a preliminary decree should be made into Court, there is nothing in the rule to justify the view that O. 23, R. 3, does not apply to adjustments of accounts made between the date of the preliminary decree and the date on which the accounts between the parties are finally settled. The procedure in O. 34 is not exhaustive, and though Rr. 4 and 5 involve the deliberate omission of payments out of Court, O. 23 is not inapplicable to mortgage suits and R. 3 of this Order is imperative in terms. A different view seems to have been taken in such cases as 1919 Mad 792, 120 IC 72 and 136 IC 732 besides 1918 Cal 472 already dealt with, but the point does not directly arise in this case as the decree here does not fall under O. 34, R. 4. There is moreover express authority in 5 Pat LJ 672 which was followed in 1922 All 383(22) for holding that there is no bar to the judgment-debtors setting up and proving the payments and adjustment or satisfaction alleged by the opposite party. An attempt has been made to distinguish these cases on the ground that the amendments of 1929 in O. 34 make it unnecessary before passing a final decree to determine the amount actually outstanding under the preliminary decree. It is however difficult to see any substantial difference between the defendant “paying into Court the amount declared due…,” as R. 5 before the amendment put it, and “making payment into Court of all amounts due from him….” as the rule now has it.

25. It has also been urged that the final decree must be determined by the preliminary decree and that therefore no payments or adjustment ought to be taken into account unless they are in accordance with the preliminary decree. The compromise upon which one preliminary decree is based specifies certain modes of payment and adjustment, and it was urged that this excludes other modes, “Expressio unius est exclusio alterius.” But this doctrine does not affect cases in which the express provision appears, upon the true construction of the contract, to have been super-added for the benefit of the mortgagor and to have been inserted for the purpose of adding to, and not qualifying, the provision which the law implies for his benefit: see Broom's Legal Maxims, p. 426 and 5 Pat LJ 672. The compromise moreover permits such other modes of payment (than by deposit in the Imperial Bank) as may be agreed upon by the parties in writing, and it is thus open to the opposite party to establish payments coming within this provision, agreements being infeasible from acceptance. It also appears from the order of the lower Court that certain sums of money were deposited by the opposite party in Court (if not also in the Allahabad Branch of the Imperial Bank) and withdrawn by the mortgagee; these must obviously be considered before a final decree can be passed. The adjustment and full satisfaction alleged by the opposite party is not, on the face of it, excluded by the compromise, and even if we were to accede to the contention on behalf of the petitioner that accounts are only required to be taken after the passing of the final decree, that does not absolve the Court from the duty of investigating the allegation of the opposite party that the entire claim of the mortgagee having been paid off, his assignee, the petitioner before us, has taken nothing under the assignment and there is nothing outstanding for which a final decree can be passed.

26. It has been urged on behalf of the Rani of Amawan that O. 23, R. 3, cannot be taken to contemplate arrangements in satisfaction raising questions of title between third parties and that the opposite party could not be heard under the rule to say that the Maharajadhiraj has been paid off, when the party that now appears in the record as plaintiff is the Raja of Amawan. But these so-called questions of title (farzi and fraud) between third parties can be limited to parties entitled to be on the record and actually found on the record, the Rani of Amawan at her own instance as a defendant and the Raja of Amawan on his own application as transferee from the Maharajadhiraj.

27. It is true that it is not the case of the opposite party that the plaintiff on record has been paid off; but that does not prevent them from being heard to say that he is not entitled to obtain a final decree because there was nothing outstanding from the mortgagee's claim for assignment to the petitioner. The order of the lower Court is therefore not without jurisdiction, and there is no-reason why the opposite party should be exposed to the risk of loss of valuable evidence which might arise if we were to stop the investigation.

28. Petition dismissed.