VELU THEVAN (DEAD) Vs. KRISHNASAMI REDDI

JUDGEMENT

(1.) The 9 defendant, the judgment-debtor, is the appellant. A decree was passed on the 11 of November, 1913, against defendants 1 and 9 and the family properties of defendants 2 to 5, 10 and 12 for Rs. 1,453-12-0, subsequent interest and costs. Various ineffective applications were made to execute the decree. E. P. No. 156 of 1922 was filed for attachment and sale of the 9 defendant's properties. When the properties were attached he filed a petition objecting to the execution of the decree on the ground that the plaintiff undertook not to proceed against him and to exonerate him and executed an agreement to that effect on the 5 of November, 1913, namely before the date of the decree. The agreement relied upon by the appellant is in these terms: "As I have taken a promissory note for Rs. 1,000 from you and from Narayanaswami Naicken, son of Thiru-malai Naicken, of Sankarapuram and as I have paid the Rs. 1,000 to Narayanaswami Naicken only and as you have signed in the promissory note only as joint for Narayanaswami Naicken I shall recover the whole amount from Narayanaswami Naicken only. If instead of that I recover the amount from you I alone shall be responsible to you for the amount of (loss) sustained by you."

(2.) The Lower Courts without admitting the agreement in evidence held on the authority of Arumugam Pillai V/s. Krishnaswami Naidu (1920) ILR 43 M 725 : 39 MLJ 222 that such an agreement cannot be pleaded as a bar and allowed execution to proceed.

(3.) The question for consideration in this Civil Miscellaneous Second Appeal is whether the agreement relied, upon by the appellant, made prior to the passing of the decree in the suit, can be pleaded as a defence to the execution of the decree. In Chidambaram Chettiar V/s. Krishna Vathiyar (1916) ILR 40 M 233 : 32 MLJ 13 (FB) it was held by a Full Bench of this Court that such an agreement can be pleaded in proceedings taken in execution of the decree. In the course of his judgment in that case the Officiating Chief Justice pointed out," The powers of the Court executing a decree are laid down in Section 47 the terms of which are extremely wide," and stated, "By a long course of decisions in this Presidency it has been held that an agreement made before the passing of the decree by which the decree was not to be executed for a certain time is a matter to be enquired into and decided by the executing Court." The decision was based upon the "very comprehensive terms of Section 47" and upon the prior decisions of this Court. In Doraiswami Moopan V/s. Subbalakshmi Palaye Ammal (1917) 8 LW 205 this decision was accepted as stating the correct law by Sadasiva Aiyar and Napier, JJ., though they distinguished that particular case from the Full Bench decision. The learned Judges pointed out, "The agreement in question was, not to further prosecute the suit, that is, not to obtain a decree in the suit. The decision in Chidambaram Chettiar V/s. Krishna Vathiyar (1916) ILR 40 M 233 : 32 MLJ 13 (FB) does not apply as the agreement before decree in that case was to the effect that a decree was to be passed but the decree so obtained was not to be executed." It is to be noticed that the learned Judges do not in any way limit the scope of that decision. The Full Bench decision was followed in Sambasiva Aiyar V/s. Thirumalai Ramanuja Thathachariar (1918) 37 MLJ 356 but it was not applied as in that case the adjustment pleaded though subsequent to the preliminary decree was prior to the final decree. It was urged by the learned Advocate-General in Sambasiva Aiyar v. Thirumalai Ramanuja Thathachariar (1918) 37 MLJ 356 that the Full Bench ruling required reconsideration, or, at any rate, that it should be confined to the facts of the case before the Full Bench. With reference to this argument the learned Judges Ayling and Krishnan, JJ., made the following observations : ". . . we are not justified in cutting down the effect of the Full Bench in the manner suggested. We think the Full Bench decided that any pre-decree agreement between parties to a suit by the terms of which the passing of the decree is not to be objected to but the execution is to be stayed in whole or in part either temporarily or for all time can be pleaded and given effect to in execution proceedings and Order 22, Rule 1 is no bar to it Though the arguments of the Advocate-General against the view of the Full Bench, and in favour of the Calcutta view to the contrary as stated in Benode Lal Pakrashi V/s. Brajendra Kumar Saha (1902) ILR 29 C 810 and Hassan Ali V/s. Gauzi Ali Mir (1903) ILR 31 C 179 are not without force, we consider we are bound by that ruling. It is eminently desirable that on a question of procedure there should be a certainty and finality." The Full Bench decision has been followed again in a very recent decision in Arunachala Goundan V/s. Swaminatha Aiyar (1923) 46 MLJ 240. It is pointed out by the learned Judges, Spencer and Devadoss, JJ., that "The District Judge's refusal to allow the defendant to set up in these execution proceedings, any agreement prior to decree, and his direction to the appellant to seek his remedy in a separate suit cannot however be supported. Section 47 of the Civil P. C. is wide enough to permit any valid objection to be taken by a judgment-debtor to the execution of a decree by the decree-holder or the decree-holder's legal representative;" and the learned Judges refer to the Full Bench decision. The decisions in Arumugam Pillai V/s. Krishnaswami Naidu ((1920) ILR 43 M 725 : 39 MLJ 222 and in Mallayya V/s. Chinna Kottayya (1921) 14 LW 317 no doubt try to limit the scope of the application of the Full Bench decision. But in the latest decision in Arunachala Goundan V/s. Swaminatha Aiyar (1923) 46 MLJ 240 as has been already pointed by us the Full Bench decision is given full effect and the decision is based upon the very wide terms of Section 47 of the Civil P. C..