THAKUR PRASAD Vs. KASTURI NARAIN SHUKLA

JUDGEMENT

(1.) This is a first appeal in execution by a decree-holder in the following circumstances:

(2.) That is, this Court held that although the agreement was not an adjustment of the decree which should be certified under Order 21, Rule 2, still the agreement was binding on the decree-holder and the execution Court should recognize that agreement as binding on the decree-holder and refuse execution contrary to the provisions of the agreement. While the appeals were pending before the High Court on 2nd December 1930, the decree-holder applied in Gorakhpur for execution of another of the decrees for costs by attachment of the same money with the B. & N. W. Railway. The same objection was made of the agreement of 20th July 1928, and this was upheld by the Subordinate Judge by an order of 2nd February 1931, ordering the release of the money, but staying execution pending the decision in appeals. On 18th May 1931, the decree-holder made an application to continue his application for execution of 2nd December 1930. On 23rd January 1933, the execution Court passed the present order under appeal in which the Court holds that the order of this Court dated 4th February 1932, is binding on the decree-holder and that it cannot go beyond that order. Learned Counsel contends that the order in appeal of this Court of 4th February 1932, is not binding as res judicata on the decree-holder because it was passed in an appeal from the execution of a different decree. Although the decree was different, the decree was passed in the same suit. The difference consists merely in that the two decrees were for different sets of costs. I consider that there is no force in this argument. Even if the order of this Court were not binding as res judicata still in my opinion the order of this. Court sets out the law to be applied and it is not open to me as a Single Judge to differ from the law as laid down by a Bench of the Court. I may also add that there is no reason to differ. Learned Counsel relied on a Full Bench ruling reported in Gobardhan Das v. Dau Dayal 1932 All. 273, which he claimed would show that an agreement which did not amount to an adjustment would not be binding on the parties for the purpose of execution. I do not think that there is anything laid down by this Full Bench to that effect. The question before the Full Bench was whether an order passed by an executing Court substituting a compromise for the decree originally passed was an order which would give a fresh start for limitation as a subsequent order within the meaning of Section 48(1)(b). It was held apparently that the order was not such a subsequent proceeding. That question appears to me to be an entirely different one from the question now before the Court as to whether the present compromise is binding on the parties. The compromise may be binding and yet the order passed to that effect may not give a fresh start for limitation. I may also note that the compromise in the present case is quite different from the compromise in the Full Bench ruling because the present compromise does not substitute anything for the. decree originally passed, but merely deals with the limitation of the methods of executing that decree. It is further argued by learned Counsel that the remedy of the judgment-debtor might be by a suit. I do not consider that that is so because Section 47, lays down that between the parties all questions arising in regard to the execution, discharge or satisfaction of the decree must be determined by the execution Court. The question as regards attachment of certain money and the issuing of a warrant of arrest are certainly questions dealing with the execution of a decree and therefore these questions must be determined by the execution Court and not in a separate suit.

(3.) For these reasons I consider that there is no force in the arguments for the appellant and I dismiss this appeal with costs.