T VENKATASUBBA MUDALI Vs. MANICKAMMAL

JUDGEMENT

(1.) The point for decision is whether it is open to a judgment debtor to plead in bar of execution of a decree against him a predecree arrangement that the decree was not to be executed. The Lower Court has held that it was not so open to him, relying on three decisions of this Court, which in my view, so far as they may be used to support his view, run counter to the general trend of decisions in this Court, The most important decision on this point is the Full Bench case in Chidambaram Chettiar V/s. Krishna Vathiyur (1916) ILR 40 M 33: 32 MLJ 13 The question referred to the Full Bench there was whether a predecree arrangement to postpone the execution of a decree for a certain time can be pleaded as a bar to immediate execution. Two learned Judges of the Full Bench held that it could, and another learned Judge differed. The former based their decisions on the principle stare decisis, the previous cases relied on by them and on which they elected to stand being Rama Aiyan V/s. Srinivasa Pattar (1895)ILR 19 M 230: 5 MLJ 218 Rukmant Ammal V/s. Krishnamachariar (1911)9 MLT 464 Krishnamachariar v. Rukmani Ammal and Subramania Pillai V/s. Kumaravelu Ambalam (1916) ILR 39 M 541 Now, curiously enough, it was not noticed and has been overlooked also in other judgments on this matter that Rama Aiyan V/s. Srinivasa Pattar (1895) ILR 19 M 230: 5 MLJ 218 is not really in point. The agreement in that case was post decree and not pre-decree. The other three cases lay down in general terms the principle that a pre-decree arrangement that a decree, when obtained, should not be executed can be pleaded in bar of execution. The Rukmani Ammal v. Krishnamachariar (1919 ILR 39 M 541 and Subramania Pillai V/s. Kumaravelu Ambalam (1916) ILR 39 M 541 follow the Full Bench rulings in Laldas V/s. Kishordas (1896) ILR 22 Bom. 463 No previous authority was quoted in the Krishnamachariar V/s. Rukmani Ammal It is clear that these cases lay down a principle wider than the principle raised in the question referred to the Full Bench. In the Full Bench case the question was whether a pre-decree arrangement for a temporary postponement of execution can be pleaded; while in the three cases above-quoted, the general principle was that a pre-decree arrangement not to execute at all can be pleaded. The concurring judgment in the Full Bench proceeded however on the footing that this general principle adopted furnishes the answer to the question raised, although it is not necessary for the decision to go so far as the three cases above quoted. I have no doubt that the concurring Judges did intend to take their stand on the wider principle enunciated in these cases, and that they meant to uphold and confirm that principle and lay down that this Court in doing so was proceeding on the principle of stare decisis.

(2.) Subsequently to Chidambaram Chettiar V/s. Krishna Vathiar (1916) ILR 40 M 33: 32 MLJ 13 there have been two divergent lines of decisions. One follows the general principle already stated for example Sambasiva Aiyar v. Thirumalairamanujathathachariar (1918) 37 MLJ 356 in which it is adopted in the clearest terms as inherent in and flowing from the Full Bench decision and Veluthevan V/s. Krishnaswami Reddi (1924) 48 MLJ 277 to which one of us was a party. The other set of cases springs from the ruling in Arumugam Pillai v. Krishnaswami Naidu (1920) ILR 43 M 725: 39 M MLJ 222 but before that is considered, reference may be made to the case in Singa Raja V/s. Pethu Raja That case turned on a rather strict interpretation of O.34 and not on this general principle, and no reference was made either to Chidambaram Chettiar V/s. Krishna Vathiyar (1916) ILR 40 M 33: 32 MLJ 13 or Arumugam Pillai V/s. Krishnanvami Naidu (1920) ILR 43 M 725: 39 MLJ 222 In Arumugam Pillai V/s. Knshnaswami Naidu (1920) ILR 43 M 725: 39 MLJ 222 which was decided in 1920, one learned Judge held that Chidamabram Chettiar V/s. Krishna Fathiyar (1916) ILR 40 M 233: 32 32MLJ 13 "does not oblige us to extend the principle to the extent required by the appellant's contention." I would point out that the one case referred to by the learned Judge, Oldfield, J., as the only case appearing in the authorised reports supporting the appellant's contentions before him is Rama Ayyan V/s. Srinivasa Pattar (1895) ILR 19 M 230: 32 MLJ 13 which as I have observed, has no application to a pre-decree arrangement while the learned Judge has overlooked Subramania Pillai V/s. Kumaravelu Ambalam (1916 ILR 39 M 541

(3.) Next comes, the case in Mallayya V/s. Chinna Kottayya (1921) 14 LW 317 which really seems to me hardly in point. It was a case of a presuit, and not of a pre- decree arrangement, which the learned Judges held could and should have been pleaded as an absolute defence to the suit. This was sufficient for the disposal of the case but the learned Judges went on to consider the general question of the right of a party to plead a pre-decree arrangement in bar of executions, and referred to the cases already quoted. The Full Bench case is put aside on the ground set out in Arumugam Pillai V/s. Krishnaswami Naidu (1920) ILR 43 M 725: 39 MLJ 222 but it is quoted at the end of the judgment as supporting the plea that the agreement in that suit could not be pleaded in bar of execution. It is clearly a case distinguishable from Chidambaram Chettiar V/s. Krishna Fathiyar (1916) ILR 40 M 233: 32 MLJ 13 The next case is Ramanathan Chettiar V/s. Venkatachalam passed in 1923 which was decided on the ground that the agreement there pleaded was more similar to the one in Arumugam Pillai V/s. Krishnaswami Naidu (1920) ILR 43 M 725: 39 MLJ 222 than to that in Chidambaram Chettiar V/s. Krishna Fathiyar (1916) ILR 40 M 233: 32 MLJ 13.