K A N CHIDAMBARAM CHETTIAR Vs. KRISHNA VATHIYAR

JUDGEMENT

(1.) I would answer the question referred to the Full Bench in the affirmative. Order XXI, Rule 2 which, speaks of a decree being adjusted in whole or in part assumes the existence, of the decree at the time of adjustment. But it has no application to cases in which the alleged adjustment was by virtue of an agreement entered into between the parties before the passing of the decree. See Rama Ayyan v. Sreenivasa Pattar (1895) I.L.R. 19 M. 230. Then it is said that it is the duty of the executing Court to enforce the decree as it stands and it has no power to stay proceedings in execution because of an agreement made while the suit was still pending and in contemplation of a decree being passed in favour of the plaintiff. Order XX Rule 11 says that after a decree for money-which is the nature of the decree in this case - has been made, the Court can postpone payment of the amount decreed only with the consent of the decree-holder. But the Court here referred to is apparently the Court which passed the decree, and this section does not seem to define the powers of the executing Court. The powers of the Court executing a decree are laid down in Section 47, the terms of which are extremely wide. It says "all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit." 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. See Rama Ayyan v. Sreenivasa Pattar (1895) I.L.R. 19 M. 230, Rukmani Ammal v. Krishnamachary (1903) 9 M.L.T. 464, Krishnamachariar v. Rukmani Ammal (1904) 15 M.L.J. 370, Subramania Pillai v. Kumaravelu Ambalam (1915) 83 I.C. 66,. A similar view was adopted in Bombay and in Allahabad. See Laldas v. Kishordas (1896) I.L.R. 22 B. 463 and Gauri Singh v. Gajadhar Das (1909) 6 A.L.J. 403,. But in the Calcutta High Court a different view has prevailed. See Benode Lal Pakrashi v. Brajendra Kumar Saha (1902) I.L.R. 29 C. 810, Hassan Ali v. Gauzi Ali Mir (1903) I.L.R. 31 C. 179, Chhoti Narain Singh v. Musstt. Rameshwar Koer (1902) 6 C.W.N. 796. I am unable to hold that the very comprehensive terms of Section 47 do not include questions like the one raised before us. I may mention that the language of Section 244 of the Code of 1882, with reference to which the case in Rama Ayyan v. Sreenivasa Pattar (1896) I.L.R. 22 B. 463, which has teen always followed in this Presidency was decided, was not perhaps as comprehensive as that of Section 47. No doubt Section 244 of the Code 1882 specifically stay of execution as a question to be decided by the Court executing the decree, but the scheme of the correspondence Section 47 of the present Code is not to specify any particular questions at all but to include all questions relating to the execution, discharge or satisfaction of a decree as being within its scope. There is undoubtedly a great deal to be said in favour of the view taken in Calcutta and perhaps it would, in some cases, be embarassing to the executing Court to enquire into agreements made before the passing of a decree and modifying its operation. On the other hand, the Court executing the decrees has been by Section 47 given such large Court powers that it is in quite as good a position as any other Court to decide upon controversies of this character. I do not think we should be justified in saying, as held in Calcutta, that under Section 47 questions relating to execution are necessarily confined to those arising subsequent to the decree and thus upsetting the practice which has so long obtained in this Presidency. Seshagiri Aiyar, J. 1. I do not propose to say much in this case. What has mainly influenced me in answering the question n the affirmative is the fact that for over 20 years this Court has acted on the principle that agreements like the one in question can be pleaded in execution proceedings. Rama Ayyan v Sreenivasa Pattar (1895) I.L.R. 19 M. 230 was not disputed for a long time. It was followed Rukmani Ammal v. Krishnamachary (1909) 9 M.L.T. 464, in Knshnamachariar v. Rukmani Ammal (1904) 15 M.L.J. 370 and in Subbramania Pillai v. Kumaravelu Ambalam (1915) 33 I.C. 66. In Bombay such agreements are dealt with by the Court executing the decree, Laldas v. Kishoredas (1896) I.L.R. 22 B. 463 (F.B.). So also in Allahabad, Gauri Singh v. Gajadhar Das (1879) I.L.R. 5 C. 27, Allahabad Law Journal 403 (three out of the four judges held that the agreement should be enquired into by the executing Court). It is true that the view of the Calcutta Judges has been uniformly and consistently against this position, Sheo Golam Lall v. Beni Prasad (1879) I.L.R. 5 C. 27, Thakoor Dyal Singh v. Sarju Pershad Misser (1892) I.L.R. 20 C. 72 and Durga Prasad Banerjee v. Lalit Mohan Singh Roy (1897) I.L.R. 25 C. 96. In this state of the law, I do not think it desirable or proper, that we should upset a practice which has been prevalent for a long period of time in this Presidency. I have always held that in matters of procedure, the principal of consistency will conduce to justice more than a strict adherence to logic. What, after all, is the change advocated? It is that the validity of the agreement should be separately litigated upon, and should not be enquired into in execution. This means further litigation and expense to the parties. I am therefore against overruling the long course of practice in the Presidency and the decisions commencing with Rama Ayyan v. Sreenivasa Pattar (1895) I.L.R. 19 M. 230. On a question of substantive law, the existence of a course of decisions may not be as effective an answer as in the case of processual law. In the latter class of cases, litigants should be enabled to rely upon a settled practice.

(2.) I, therefore, do not propose to examine the case law on the question at any length. The agreement in question is not an adjustment within the meaning of Order XXI, Rule 2. The adjustment presupposes an existing decree, Lodd Govindass v. Ramdoss (1915) M.W.N. 225, Ponnusami Nadar v. Letchmanan Chettiar (1911) I.L.R. 35 M. 659, and Fateh Muhammad v. Gopal Das (1885) I.L.R. 7 A. 424 Therefore, the agreement is not obnoxious to Order XXI, Rule 2.

(3.) Nor is the executing Court debarred from enquiring into it by virtue of the language of Section 47. The decision in Sakharam Ramchandra v. Govind Vaman (1873) 10 B.H.C.R. 361, was passed with reference to the language of the Code of 1861 which in material points is different from that of the present Code.