PANCHANANDA DEBNATH Vs. BROJENDRA KUMAR SUTRADHAR

JUDGEMENT

(1.) In this case, the appeal is brought from the judgment and decree of my learned brother Mitter, J., sitting in second appeal. It appears that the present appellant who was the defendant in the suit had certain carpenter's work done for him by the plaintiffs and also lent to the plaintiffs certain sums of money represented by three or four bonds. The appellant sued upon one of the bonds and, on 24 June 1926, got an ex parte decree thereon. The plaintiffs case is that, by an anterior agreement, it was arranged between the parties that the plaintiffs at certain times would pay certain sums of money and that, though the decree was to be allowed to go ex parte, it would not be executed, provided the plaintiffs kept to their bargain and paid by the instalments agreed upon. The plaintiffs did keep to their bargain as regards the instalments, though the time for paying off all the instalments had not arrived when, on 14 July 1926, the present appellant applied for execution of the decree.

(2.) According to the facts found by the Courts below, this application for execution was contrary to good faith and to the terms of the bargain on which the defendant had obtained the ex parte decree. The present suit is brought for relief somewhat inartistically worded but it is in substance for an injunction, to restrain the defendant from putting in execution the ex parte decree of 24 June 1926 obtained pursuant to the anterior agreement with the plaintiffs to which I have referred. Various objections have been taken, but the first question that we have to consider is whether such a suit will lie, whether the claim ought to have been brought by an application under Section 47 of the Code and whether there is anything in law to prevent the plaintiffs from getting an injunction in these circumstances. The cases cited to us show that, where there is an anterior agreement to the effect that a decree shall be allowed to be passed but shall not be executed, such an agreement cannot be set up in bar to the execution of the decree because the execution proceedings are based upon the decree and, to allege infirmities in the decree qualification to the decree (sic) is not proper when the Court is merely the executing Court Such a case of anterior agreement which was not allowed to be set up in execution will be found Illustrated in Benode Lal Pakrashi V/s. Brajendra Kumar Saha [1902] 29 Cai 810 and Hassan Ali V/s. Gauzi Ali Mir [1904] 31 Cal. 179. Again, there are cases where adjustments after decree which could quite properly be set up as a bar to execution had not been allowed to be set up because they were not recorded under Order 21, Rule 2, Civil P.C. Those cases have no bearing upon the present case.

(3.) The present case is one of an agreement anterior to the decree, an agreement that the decree should not be enforced except in certain event, namely, default of the plaintiffs in paying certain instalments and the suit is brought to restrain execution contrary to the agreement. It has been suggested that an agreement that a decree shall be passed but, if the defendant pays so much money in certain time, it shall not be executed is an agreement contrary to public policy. I can only say that, in my opinion, that is a novel doctrine and is entirely unsubstantial. It is quite right that such an agreement should not be set up in bar to execution, but I know of no doctrine to say that such a thing is contrary to public policy. The relief asked was asked in the form of a declaration. That certainly was wrong in form. The correct form of the relief was to ask for an injunction to restrain the present appellant from putting in execution the decree of 24 June 1926 unless and until the opposite parties committed a breach of their obligation under the agreement to which I have referred. It appears that now the whole of the money has been paid. There is no reason, therefore, why we should recast the form of the decree made by the Courts below. In my opinion, this appeal fails and must be dismissed with costs. Mukerji, J.