T V RAMASUBBA IYER Vs. SANKARARAMAKRISHNA AVADHANIAL

JUDGEMENT

(1.) THE assignee-decree-holder is the appellant. THE suit was for recovery of money due under a hypothecation bond executed by the father of defendants 1 to 6. THE other defendants were the prior and the puisne encumbrancers over the property. THE decree in the case was passed on 22.12.1121. Prior to the date of the decree on 12.12.1121 an agreement embodied in Ext. 1 was entered into between the appellant and the 3rd defendant. Ext. 1 stated that the appellant was going to take an assignment of the decree, as soon as it was passed, for Rs. 13,500 and also provided that if within 3 months of the date of the assignment 3rd defendant pays the said sum of Rs. 13,500 with 6 per cent interest thereon and the costs of the assignment then the appellant will enter satisfaction of the decree. THE appellant took the assignment of the decree as contemplated. He filed execution application for recognition of the assignment and for execution of the decree. THE 3rd defendant deposited the amount agreed upon in Ext. 1 within the time stipulated therein and prayed that satisfaction of the decree may be entered. This was objected to by the assignee-decree-holder. While admitting Ext. 1 he contended that 3rd defendant's application is not maintainable and that he is entitled to execute the decree for the entire amount covered under the decree. THE court below repelled the contentions of the assignee-decree-holder and directed satisfaction of the decree to be entered. THE appeal is directed against this order.

(2.) THE main point urged in appeal is that the assignment evidenced by Ext. 1 is a pre-decree arrangement which cannot be gone into in execution. THE appellant before us was not a party to the suit O.S. 98 of 1114. Ext. 1 embodies only an agreement between the appellant who was then a stranger to the action and the 3rd defendant. THE principle enunciated in Padmanabhan Krishnan v. Vallabhdas Lallobhai 25 T.L.R. 123 F.B. ) and the subsequent decision reported in Krishna Pillai v. Kollappa Pillai (28 T.L.J. 279), Domini v. Thomas (28 T.L.J. 1095) Kurien Chandy v. Joseph Abraham (30 T.L.J. 838) and Chacko v. Augusthy (30 T.L.J. 842) that predecree agreements cannot be pleaded as a bar to execution relates only to agreements between the parties to the suit and has no application to agreements with a stranger as in the present case. THEse decisions therefore do not apply to the facts of this case. THE assignment itself was taken only after the decree in the suit was passed. We do not think that the agreement in the present case amounts to an abuse of the process of the court or is opposed to public policy. THErefore we see no justification in extending the principle enunciated in the above decisions which is confined to the parties to the suit to agreements of the nature in question with strangers to the action. We do not think that the 3rd defendant is precluded from pleading the agreement in execution and to have the decree satisfied on the terms specified in Ext. 1.