KANDADI APPANA KRISHNAMACHARY Vs. SRIMAN MADABHUSHI SIMHADRI APPALACHARYULU

JUDGEMENT

(1.) THE appellant sought to execute a decree and the respondents pleaded an adjustment which had not been certified under Order 21, Rule 2. It appears that after the decree had been. passed, and while an appeal was pending, the parties met together and arranged a settlement of all their outstanding disputes; and one of the terms of that settlement was that the decree which had been obtained should be cancelled and that the adjustment should be certified in. Court in the appeal. This apparently was not done, but the appeal was dismissed) as having been withdrawn. It is argued that this adjustment is a pre-decretal arrangement which could be proved in. bar of execution; and the respondent quotes a decision of Curgenven, J., in. Narayanan Nambudri V/s. Damodaram Nambudri 1931 Mad 26, in support of the proposition that when an arrangement is come to while an appeal is pending, that arrangement is not one which requires to be certified under Order 21, Rule 2 and can be regarded as a pre-decretal arrangement. It is true that Curgenven, J., does in the case referred to treat an arrangement come to at the second appellate stage (and actually after the second appellate decree had been passed though the parties were not aware of its passing) as a pre-decretal arrangement. No authority is quoted for the view that an arrangement entered into during the pendency of an appeal is pre-decretal and the learned Judge does not lay it down as a general proposition that no adjustment entered into after a decree was passed, and while an appeal is pending requires to be certified under Order 21, Rule 2. I find it very difficult to appreciate the basis of that decision and all I would say is that, with all respect, it seems to me apparent that when there is an executable decree and an adjustment of that decree Order 21, Rule 2, requires that adjustment to be certified, quite regardless of whether there is or is not an appeal pending against that decree; for the fact that an appeal is pending does not prevent the lower Court's decree from being executed and, if any adjustment is come to after the decree and before the decision of the appeal and is not certified or recorded as required under Order 21, Rule 2, the Court in my opinion, is de barred by Sub-rule 3 from recognising such an adjustment. This really disposes of the present case.

(2.) BUT with reference to the observations of the lower appellate Court I may briefly state that in my opinion the adjustment in question is also bad because it purports to bind a minor and was not approved by the Court; and I cannot accept the learned Subordinate Judge's distinction between the compromise of a suit and the compromise of an appeal. Apparently when in an appeal there is a compromise a term of which is that the lower Court's decree shall be nullified, the learned Subordinate Judge would hold that there is no compromise of the appeal. I would only say that I cannot follow this reasoning. If there were not a compromise of the appeal the appeal would go on; if however the parties have come to an agreement to settle the appeal on certain terms, which put an end to it, such a settlement, if it affects the interests of a minor, must under Order 32, Rule 7, be subject to the leave of the Court. I therefore allow the appeal with coats throughout and order that the decree shall be transferred to the Court of the District Munsif of Kovvur for execution. Leave to appeal is refused.