M N HASASINGH AND CO Vs. SARDARMAL BARDIYA

JUDGEMENT

(1.) THIS is an execution second appeal by the judgment-debtor and directed against the order of the District judge, Jaipur City, Jaipur, dated 7th December, 74, dismissing the appeal and confirming the order passed by the Munsif (Execution Court) Jaipur City (East) on 8-10 1974 by which the objections filed by the judgment debtor were rejected. Sardar Mal Bardiya obtained a decree for eviction against the tenant-appellant from the Court of Munsif on 28-8 64 from the shop situate in Johari Bazar. The decree was confirmed in appeal on 18-1-66. It was urged by the judgment debtor in execution that on 13-5-70, during the pendency of the second appeal, the landlord namely Sardarmal Bardiya accepted rent for a period of 100 months and as such the decree could not have been passed and it cannot be executed. In support of the contention an entry in the 'rokar' of the judgment-debtor has been relied upon, which is alleged to have been signed by Sardarmal. The learned Execution Court held that the Executing Court cannot go behind the decree and he refused to consider the adjustment claimed by the judgment-debtor prior to the decision of the second appeal from the High Court. The learned Court held that an objection of adjustment, which go to nullify the decree, is not maintainable in execution. Being aggrieved of this order, the judgment-debtor preferred an appeal and the learned District Judge by his order dated 7th Dec. , 74 agreed with the view taken by the Execution Court. It is this order which is subject-matter of challenge in this appeal.

(2.) MR. Bhandari learned counsel appearing for the appellant has placed reliance on Laldas Narandas vs. Kishoredas Devidas (1) and K. A. N Chidambaram Chettiar vs. Krishna Vathiyar (2 ). The facts in Bombay case were that Devidas and Harilal obtained a decree on an award with costs against Shankerlal and Laldas when they applied for execution against Laldas in order to recover his half share of the costs, he pleaded that before the proceedings had commenced the plaintiff had entered into an agreement with him that none of the costs which might be awarded by the court, should be recovered from him. It was held by their Lordships of the Bombay High Court that the existence of Validity of such an agreement ought to be determined in execution under the provisions of section 244, Civil Procedure Code, 1882 (Act No. 14 of 1882) and not in a separate suit, suffice it to say that the facts of the Bombay case are very much distinguishable from the facts of the present case. In the present case there was a decree against the judgment debtor passed by the trial Judge on 28 8-64 and it was also confirmed in appeal on 18-1-66. The arrangement alleged by the judgment-debtor in the present case is said to be dated 13-5-70. There was a decree already in existence against the judgment debtor and the second appeal was pending at that time which was eventually dismissed on 27-2-73. This was not alleged in the second appeal that the decree holder having accepted the tent for a period of 100, months has thereby adjusted the decree already passed. The adjustment of the decree was also not got certified under O. XXI R. 2 C. P. C.

(3.) THE Rangoon High Court takes similar view in Mulla Ramzan vs. Mg. Po Kyaing (8) it was observed : "a decree which on the face of it is en-forcible to the fullest extent cannot in execution procee dings be challenged as being in executable wholly or in part on account of an agreement between the parties entered into prior to the decree. "