(CHERUKAT MADHATHIL ETAKRAMANCHERI ILLATH KARNAVAN) NARAYANAN NAMBUDRI Vs. (PERUVAMPURA DEVASWAM SAMUDAYI KIZHAKKINIYAKATH POLANCHERI ILLATH) DAMODARAN NAMBUDRI

JUDGEMENT

(1.) The first question arising in this appeal is whether a suit lay to recover money realized by defendant 1, in execution for costs contrary, it is said, to the terms of the agreement, Ex. A. The circumstances were somewhat peculiar. Defendant 1, as managing trustee of a Devaswom, sued to recover certain properties from the present plaintiffs 4 and 5, who were tenants of the Devaswom. He lost his case in the two lower Courts and plaintiffs 4 and 5 realized their costs from him. Then he filed a second appeal and apparently, while all the parties thought it was still pending, the agreement above referred to was concluded. The relevant part of the text of this agreement is translated in para. 6 of the Subordinate Judge's judgment. In it defendant 1 agreed with another of the trustees on behalf of the remainder not to prosecute the litigation further, including Second Appeal 1606 of 1916, described as still pending before the High Court. This was on 16 September 1918 and in point of fact judgment in the second appeal had been delivered on 18 April 1918. It resulted in a decree for defendant 1, and he executed it for his second appeal costs against plaintiffs 4 and 5, obtaining from them the sum which it is now sought to recover. The first question arising is, assuming that both defendant 1 on the one hand and plaintiffs 4 and 5 on the other were parties to this agreement and that by it defendant 1 undertook not to proceed further against these plaintiffs, can they enforce its terms by suit, and are they not precluded from suing by the terms of Section 47, Civil P.C.

(2.) The agreement is anomalous in character because, while in point of time it was post- decree, in point of character and intention it was pre-decree. If it was wholly pre-decree or wholly post-decree no difficulty would have arisen. It has been held by a Full Bench in Chidambaram Chettiar V/s. Krishna Vathiyar [1917] 40 Mad. 233 that an agreement originating before a decree, and relating to execution, can be dealt with by the execution Court under Section 47, and accordingly that no suit to enforce it will lie. A post-decree agreement, if the application to record be within the ninety days provided by Art. 174, Lim. Act, may be dealt with under Order 21, Rule 2, Civil P. C, and if time barred may form the basis of a suit for damages: Viraraghava V/s. Subbakha [1882] 5 Mad. 397 (F.B.) and Krishna Ayyar v. Savurimuthu Pillai [1919] 42 Mad. 338.

(3.) It has not been argued before me, and; I do not think it can be contended, that the suit agreement did not relate to the execution, discharge or satisfaction of the decree. An agreement not to let a pending appeal proceed to decree must-include, if it turns out that a decree has been passed, an agreement not to take out execution under it. So far therefore; as the subject matter is concerned, this agreement would fall within the scope of Section 47. The contention is, however, that it comes within the terms of Order 21, Rule 2. I find it very difficult to reconcile the terms of that rule with the nature of the agreement. In the Full Bench case referred to above, it was held that the rule would not apply to adjustments made before the decree is passed. Abdur Rahim, Offg. C. J., says: Order 21, 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; and Philips, J., who differed from the other two members of the Bench on the main question, agreed with them in this. I do not think it can make any difference to the applicability of Order 21, Rule 2, that the decree had actually been passed if the parties to the agreement drew up their agreement in ignorance of that circumstance. Rule 2 says nothing about post-decree agreements. What it does say is that when money payable under a decree is paid out of Court, or when the decree is otherwise adjusted, etc., the fact shall be certified. A decree cannot be adjusted before the parties know of its existence and what it consists in.. They can at the most say what is to happen if and when a decree is passed. The agreement in the present case resembles in type the pre-decree agreement in the Full Bench case, where the defendant was to allow the plaintiff to get his decree and the plaintiff was to agree to-certain arrangement for its satisfaction-It is so far from the post-decree type of agreement that it in fact provided that no decree against plaintiffs 4 and 5 should be obtained. It appears to me that the reasoning in the Full Bench case is as applicable to the agreement here as to the agreement there, and that it was open to the executing Court to determine its effect under Section 47. Upon this view the suit would be barred.