PARAMANANDA ASH Vs. BHAGABATI DEI

JUDGEMENT

(1.) IN Title Suit No. 155 of 1955 in the Court of the First Munsif, Cuttack, plaintiff obtained an ex parte decree with costs. The substantive portion of the decree runs thus. The defendant is directed to give peaceful possession of the house within one month hence, failing which plaintiff will take khas possession of the house through court. The defendant is directed to pay to the plaintiff an amount of Rs. 66/-on account of arrears and the plaintiff is entitled to damages at the rate of Rs. 10/per month from the date of the suit till delivery of possession of the house in execution proceeding on payment of proper court-fee. Future interest is not allowed. On 31-7-56 Execution Case No. 156 of 56 was levied for eviction and for recovery of Rs. 214-12-0 including arrear of house rent upto July, 1956 and costs of the suit. On 1-2-64 an agreement (Ex. A) was entered into between the parties, the essential terms of which are extracted hereunder.

(2.) THE only contention raised by Mr. Das is that the present execution case filed in 1965 on the basis of the original decree, as modified by Ex. A, is not maintainable. The original decree has become time barred. The last execution, being on the basis of Ex. A, is not maintainable if Ex. A is ignored. This contention requires careful examination.

(3.) WHERE the parties entered into an agreement against the execution of the decree, the question whether such an agreement is a bar to the execution, depends upon the nature of the agreement and the intention of the parties. If by the agreement, the decree is superseded and abandoned and an altogether new contract is entered into, the contract would constitute the basis of subsequent suit. On the other hand, if the agreement does not supersede the decree, the Executing court can inquire into the effect of the agreement and decide the matter under section 47. C. P. C. subject to the provisions of Order 21. Rule 2, C. P. C. , where such an agreement amounts to adjustment of the decree. In Oudh Commercial bank Ltd. . Fyzabad v. Bind Basni Kuer, AIR 1939 PC 80 the Judicial Committee noted the conflicting authorities and observed thus--If it appears to the Court, acting under Section 47. that the true effect of the agreement was to discharge the decree forthwith in consideration of certain promises by the debtor, then no doubt the Court will not have occasion to enforce the agreement in execution proceedings, but will leave the creditor to bring a separate suit upon the contract. If, on the other hand, the agreement is intended to govern the liability of the debtor under the decree and to have effect upon the time or manner of its enforcement, it is a matter to be dealt with under Section 47. In such a case, to say that the creditor may perhaps, have separate suit, is to mislead the Court, which, by requiring all such matters to be dealt with in execution, discloses a broader view of the scope and functions of an Executing court In the light of the aforesaid principle the contention of Mr. Das is to be tested.