A decree passed on a compromise in a mortgage suit is executable if the terms of the compromise relate to the suit and are not extraneous to it, and the mortgagor can waive the benefit of Order 34, Rule 14, C. P. C.

( 1 ) THE judgment-debtor is the appellant. His appeal arises out of execution proceedings started by, the respondent herein. The plaintiff-respondent on the basis of a mortgage filed a suit for recovery of the mortgage amount. In that suit, a compromise was effected between the appellant and the respondent. The relevant terms of the compromise were ; "1. The defendant do pay to the plaintiff a sum of Rs. O. S. 1,01,566-2-4 and full costs of this suit together with interest at 6 per cent and 1/2 per cent per annum compoundable quarterly on both sums from date of suit till date of payment.

( 2 ) THE said sum shall be paid by the defendant to the plaintiff in six monthly installments of I. G. Rs. 22,000. 00 and the first of such installments shall become payable on the 12th day of November 1953 and thereafter on the following dates namely 12/05/1954 and 12/11/1954 and the whole of the balance due under the decree on or before 12/05/1955.

( 3 ) AS the properties already mortgaged are said to be not sufficient security the defendant has this day mortgaged by way of further security his building Nos. 7-5-41 to 7-5-41/4 situated at Nizamabad as per registered deed of mortgage dated 27-6-1953, registered in the office of the Sub-Registrar, Nizamabad.

( 4 ) IN default of the payment of any one installment on the due date the plaintiffs will be entitled to cause the properties already mortgaged and those mortgaged by way of further security and referred to in para above to be sold in any order and appropriate the net sale proceeds towards the satisfaction of the mortgage decree in this suit.

( 5 ) IF the sale proceeds of the properties already mortgaged and subsequently mortgaged as further security are found to be insufficient the plaintiff will be entitled to a personal decree against the defendant and recover such balance from the mortgagor personally and from his other properties both movable and immovable. " 2. On the basis of this compromise, a decree-was passed and when the plaintiff-respondent herein started execution proceedings the appellant raised objection to the execution of the decree on various grounds. His first objection was that the decree was declaratory in nature and as such it was not executable. The second objection raised on his behalf was that as the decree-holder has accepted installments the remedy of the respondent was by way of suit. The Court below has repelled these contentions of the judgment-debtor and directed execution of the decree. It is this order of the executing Court that is now challenged in this appeal by the judgment-debtor. Shri Vasant Rao Mukhedkar, the learned counsel for the appellant, contended that the decree passed was only a declaratory one and was not capable of execution. The second contention advanced is that as the decree-holder has accepted installments his remedy was by way of suit as provided under Order 34, Rule 14, C. P. C. The question whether a decree is a declaratory one or is one capable of execution depends on the terms of the compromise, and the intention of the parties ought to be deduced from the language used in the compromise without any aid from oral evidence. In the case of an ordinary decree in a mortgage suit not based on a compromise a decree will be drawn up in the form printed under Rule 2 of Order 34, C. P. C. , and will then be followed by a final decree under Rule 3. The provisions of Rule 2 of Order 34 show that they are intended to give an opportunity to the mortgagor to pay the money under the decree. Similarly, the provisions of Order 34, Rule 14 are intended for the benefit or the mortgagor. There is nothing whatever therein to show that it is not open to the mortgagor to waive the benefit of that provision and thereby do away with the necessity of requiring the mortgagee to file a separate suit. It is not denied that it is open to the parties to contract themselves out of the provisions of Order 34 by means of -a compromise and to have a d