BHAGWATI MAHRAJ Vs. SHAMBHU NATH

JUDGEMENT

(1.) This second appeal raises the question whether the agreement between the judgment-debtor and the decree-holder under which the decree-holder foregoes his right to execute the decree in consideration of the judgment-debtor's foregoing his right to appeal against the decree is a matter for investigation by the execution court under Section 47 of the Code of Civil Procedure. The appellant is the judgment-debtor. When the decree-holder applied for execution of the decree he raised two objections. First, he Contended that the decree-holder was not entitled to execute the decree as he had agreed not to do so provided the judgment-debtor did not appeal against the degree. Secondly, he objected to the attachment and sale of certain items of his property for which he claimed exemption under the category of cooking vessels and weaving apparels. The first objection was rejected by the execution court on the ground that it was "absurd". The second objection was partly allowed and 28 items of articles were held not liable for attachment and sale. On appeal by the judgment-debtor the learned Additional Civil Judge, Sultanpur, confirmed the decision of the execution court on both the points. It was contended before him that the judgment-debtor should have been allowed to lead evidence to prove the agreement not to execute the decree but the appellate court took the view that this agreement was in the nature of an adjustment of the decree, and could not, unless certified by the court under Order XXI Rule 2, C. P. C. be permitted to be set up under Section 47, C. P. C. Accordingly he dismissed the appeal. Aggrieved by this decision the judgment-debtor, has now come to this Court in Second Appeal.

(2.) After hearing learned counsel for both the parties I am of the opinion that the decision of the courts below is erroneous and is based upon a misconception of the nature of the agreement alleged by the judgment-debtor. He was not claiming that the decree had been adjusted or satisfied. He or his counsel may have used the word "adjustment" but it was the duty of the court to ascertain the nature of the agreement. Its terms have been described by the execution court thus:

(3.) The question before me is whether a judgment-debtor can set up such an agreement as a bar to execution or has to file a separate suit restraining the decree-holder from executing the decree in breach of the contract. The words of Section 47, C. P. C. are, in my opinion, wide enough to include an agreement of this kind. It provides that