KAKURAMJI Vs. BAPIRAJU

JUDGEMENT

(1.) This appeal arises out of the execution proceedings in O. S. No. 252 of 1947. It raises a point whether an agreement entered into between the parties pending a suit could be pleaded in bar of execution of a decree against the appellant. The short facts are these: The respondent filed a suit for dissolution of partnership and for taking of accounts in the court of the Disrtict Munsif of Parvathipur against defendants 1 & 2 and the deceased brother of defendants 3 to 6, the ist defendant being the appellant herein. During the pendency of the suit, an agreement was entered into between the ist defendant and the plaintiff, the main terms of which are as follows: In consideration of the ist defendant giving up his contentions in the suil he should be paid a sum of Rs. 750/- out of Rs. 2,000/- deposited by the plaintiff with one Varanasi Suryanarayana and that the plaintiff should execute a promissory note for another sum of Rs. 250/- while the balance of Rs. 1250/- in the hands of the said Suryanarayana could be withdrawn by the plaintiff. The ist defendant should have nothing to do with either the benefits or the losses in the suit. If any decree should be passed in his favour he should execute it for the benefit of the plaintiff and make over to the plaintiff the amounts realised thereby, after deducting the expenses incurred by him in that behalf. A preliminary decree was passed in the suit in pursuance of which a commissioner was appointed to take accounts. On the report submitted by him, a final decree was passed on 14-9-1948 awarding to the plaintiff Rs. 2,345-2-6 with interest thereon at 6% per annum from 1-8-1948 and costs against the 1st defendant.

(2.) The plaintiff levied execution of this decree against the 1st defendant. The latter pleaded the pre-decretal arrangement above mentioned in bar of execution. The courts below overruled the objections and directed the execution to proceed. The 1st defendant, who is dissatisfied with the decree, has filed this second appeal.

(3.) In support of this appeal, it is argued by Mr. Ramanarsu that the view of the lower appellate court, that the agreement in question could not be put forward in bar of execution is erroneous and the rulings relied on by it are irrelevant. It is contended by him that the decree is not executable by virtue of the agreement and calls in aid a Full Bench ruling of the Madras High Court in Papamma v. Venkayya which has laid down that an agreement not to execute a decree relates to execution and does not in any way attack the decree itself, nor does it attempt to vary the terms of the decree. This decision affirmed an earlier Full Bench decision of the same Court in Chidambaram Chtttiar v. Krishnavathiyar. The principle underlying the last-mentioned ruling is contained in the following passage :