BIND BASNI PRASAD, J.

( 1 ) THIS is a decree-holders appeal arising out of an execution proceeding. The relevant facts are that one Inder-man was the owner of a house He died leaving a widow. On 18th September 1934, Lekhraj, the judgment-debtor-respondent, obtained a sale deed in respect of this house from the widow. Sri Ram, the decree-holder-appellant, alleging himself to be a reversioner brought a suit for the possession of the house and for mesne profits. This suit was decreed and the decision was upheld, with a slight modification, in appeal. Sri Ram applied for the execution of the decree on 20th July, 1946. Lekhraj filed a second appeal in this Court and obtained an order for the stay of the execution proceedings. The second appeal was dismissed by this Court on 14th February 1947. The stay order was then discharged. On the 2nd April 1947, Lekhraj, respondent, made an application under Order 21, Rule 2, Civil P. C. alleging that the parties had come to a compromise by means of a written agreement on 15th February 1947, according to which Sri Ram, decree-holder, had agreed to transfer the house to him for a price which may be fixed by one Lakhpat Singh who was appointed as an arbitrator for this purpose. On 20th february 1947, Lakhpat Singh gave his award to the effect that the house shall be transferred by sri Ham to Lekhraj for a sum of Rs. 5,000. Sri Ram was given the right to withdraw Rs. 350 which was in deposit in court and the judgment-debtor was required to pay the balance of Rs. 4,650. Lekhraj in his application under Order 21 Rule 2, Civil P. C. prayed that he might be permitted to deposit the sum of Rs. 4,650 in Court but the trial Court did not grant such permission.

( 2 ) SRI Ram denied the agreement and the award and contended that even on the facts stated by the judgment-debtor no adjustment could be certified under Order 21 Rule 2, Civil P. C.

( 3 ) LEARNED Munsiff held that the decree holders contention was false, that there was really an agreement between the parties under which the decree-holder was to transfer the house in dispute to the judgment-debtor for such sum as might be fixed by Lakhpat Singh and that Lakhpat Singh had determined the same at Rs. 5,000. He however, held that Order 21 Rule 2, Civil P. C. had no application to the present case and that the agreement and the award were not an adjustment within the meaning of this rule. The judgment-debtors application was accordingly dismissed.

( 4 ) THE judgment-debtor went up in appeal. Learned Civil Judge concurred with the findings of the trial Court that the parties had agreed that the house was to be transferred to Lekhraj on payment of such sum as might be determined by Lakhpat Singh and that for this purpose the deed of agreement, Ex. 1, was duly executed by them. Further he held that Order 21 Rule 2, Civil p. C. applied to all the decrees and not only to money decrees and that the adjustment alleged by the judgment-debtor could be certified. It was also held by him that even if Order 21 Rule 2, civil P. C. did not apply to the present decree there was nothing in the Civil P. C. which prohibited such a compromise between the parties and that the execution Court could well take into consideration the agreement between the parties for the purpose of deciding whether or not the decree was executable. In the result he allowed the appeal.

( 5 ) THE decree-holder now comes in appeal. The finding of the lower appellate Court that a deed of agreement was executed by the parties according to which the decree-holder was to abandon the right to execute the decree in lieu of the judgment-debtor paying him Rs. 5,000 is one of fact and learned counsel for the appellant has not challenged it rightly. He had argued, however, that the agreement entered into between the parties was an executory contract and not an executed one. We are unable to agree with this Lekhraj, judgment-debtor, was already in possession of the house. According to the contract this p