- (1.) THIS is an execution second appeal by the judgment-debtor and directed against the order of the District judge, Jaipur City, Jaipur, dated 7th December, 74, dismissing the appeal and confirming the order passed by the Munsif (Execution Court) Jaipur City (East) on 8-10 1974 by which the objections filed by the judgment debtor were rejected. Sardar Mal Bardiya obtained a decree for eviction against the tenant-appellant from the Court of Munsif on 28-8 64 from the shop situate in Johari Bazar. The decree was confirmed in appeal on 18-1-66. It was urged by the judgment debtor in execution that on 13-5-70, during the pendency of the second appeal, the landlord namely Sardarmal Bardiya accepted rent for a period of 100 months and as such the decree could not have been passed and it cannot be executed. In support of the contention an entry in the 'rokar' of the judgment-debtor has been relied upon, which is alleged to have been signed by Sardarmal. The learned Execution Court held that the Executing Court cannot go behind the decree and he refused to consider the adjustment claimed by the judgment-debtor prior to the decision of the second appeal from the High Court. The learned Court held that an objection of adjustment, which go to nullify the decree, is not maintainable in execution. Being aggrieved of this order, the judgment-debtor preferred an appeal and the learned District Judge by his order dated 7th Dec. , 74 agreed with the view taken by the Execution Court. It is this order which is subject-matter of challenge in this appeal.
(2.) MR. Bhandari learned counsel appearing for the appellant has placed reliance on Laldas Narandas vs. Kishoredas Devidas (1) and K. A. N Chidambaram Chettiar vs. Krishna Vathiyar (2 ). The facts in Bombay case were that Devidas and Harilal obtained a decree on an award with costs against Shankerlal and Laldas when they applied for execution against Laldas in order to recover his half share of the costs, he pleaded that before the proceedings had commenced the plaintiff had entered into an agreement with him that none of the costs which might be awarded by the court, should be recovered from him. It was held by their Lordships of the Bombay High Court that the existence of Validity of such an agreement ought to be determined in execution under the provisions of section 244, Civil Procedure Code, 1882 (Act No. 14 of 1882) and not in a separate suit, suffice it to say that the facts of the Bombay case are very much distinguishable from the facts of the present case. In the present case there was a decree against the judgment debtor passed by the trial Judge on 28 8-64 and it was also confirmed in appeal on 18-1-66. The arrangement alleged by the judgment-debtor in the present case is said to be dated 13-5-70. There was a decree already in existence against the judgment debtor and the second appeal was pending at that time which was eventually dismissed on 27-2-73. This was not alleged in the second appeal that the decree holder having accepted the tent for a period of 100, months has thereby adjusted the decree already passed. The adjustment of the decree was also not got certified under O. XXI R. 2 C. P. C. The Madras case is also a full bench decision. In that case by majority of two to one it was held that it was open to a judgment-debtor to set up an oral agreement subsequent to the filing of the suit prior to the passing of the decree in order to prevent the decree holder from proceeding to execute the decree. From the perusal of the decision it appears that the majority view of the full bench was based on a practice that prevailed in the Madras Presidency for a long time. Mr. Abdul Rahim C. J. referred at page 237 of the report to the following effect : "by a long course of decisions in this Presi dency 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. " He again referred at page 238 to the practice that it had been in that Presidency. Sheshagiri Ayyar J. also based his opinion expressly on the practice prevailing in that presidency. He stated that he would have hesitated a great deal before allowing such a course to be adopted if the matter were res integra. The decision was thus based on the principle of Stare decisis. The dissenting Judge Phillips J. was not in favour of deciding the case on that principle. It may also be noticed here that the view taken by the Bombay and Madras High Courts have not been accepted by the other High Courts. The earliest Calcutta view is represented in Chhoti Narain Singh vs. Rameshwar Koer (3 ). Relevant extract from that judgment is given below : "a contract made between the parties to a suit in derogation of a decree which may be passed in future cannot form the subject of an inquiry under sec. 244, C. P. C. , in a proceeding for the execution of the decree. Questions under sec. 244, cl. (c), relating to the execution of a decree and arising between the parties to a suit in which the decree was passed or their representatives must be such as have reference to matters arising subsequent to the passing of the decree and not antecedent to it. An agreement not to execute a decree, if effect is sought to be given to it in execution proceedings, must be a transaction between the parties subsequent to the decree and not one which would make the decree itself void as being in contravention of the agreement. " This view was also adopted by the Calcutta High Court in Benode pal Pakrashi vs. Brajendra Kumara Saha (4 ). Again, in another case Syed Hassan Ali vs. Gauzi Ali Mir (5), the facts were that A obtained a decree for has possession of certain land by ousting B. In execution thereof, B pleaded that there was an agreement between him and the decree holder, previous to the decree, that he should not be ousted from the land and that permanent rights over the same would be granted to him by the decee holder. Their Lordships held that such a question could not be gone into under s. 244 of the Civil Procedure Code. Case can only be inquired into under s. 244 when the existence of a decree which is susceptible and capable of execution is conceded, and it does not apply to a case where the object is to impugn the decree itself or to set up a case inconsistent with the decree which it is sought to execute Their Lordships followed the earlier decisions of this Court in Benode Pal Pakrashi and Chhoti Narain Singh. The Bombay case was dissented. In Dilsukh Rai vs. Lachhman Das (6 ). Shadi Lal C. J. who spoke for the court, held that a Court executing a decree cannot go behind the terms of the decree and must execute the decree as it stands. The Madras case (2) relied upon by the other party was not approved. This view was followed in Robert Hercules Skinner vs. R. M Skinner (7 ). Bhide J. speaking for the Court observed as follows : "sec. 47, Civil P. C. is, no doubt, very widely worded and Says down that all questions relating to the execution, discharge and satisfaction of a decree shall be determined by the Court executing decree. But there is, I think, an essential distinction between the functions of a Court which adjudicates on the rights of the parties and embodies the decision in a decree and the function of a Court whose duty is merely to execute such a decree. As pointed out by the learned Judges of the Calcutta High Court in 31 Cal. 179. Sec. 244, Civil P. C. 1882, (which corresponds to Sec. 47, Civil P. C. 1908) presupposes the existence of a decree which is validly susceptible of execution. The executing Court can, therefore, only go into matters relating to the execution, discharge or satisfaction of the decree which arise after the decree came into existence and result in its discharge or satisfaction and not into a predecree compromise like the one pleaded in this case which practically nullifies the decree. "
(3.) THE Rangoon High Court takes similar view in Mulla Ramzan vs. Mg. Po Kyaing (8) it was observed : "a decree which on the face of it is en-forcible to the fullest extent cannot in execution procee dings be challenged as being in executable wholly or in part on account of an agreement between the parties entered into prior to the decree. " The same view was expressed by the Nagpur High Court in Hukamchand vs. Radha Kisan (9 ). The Bombay decision (1) was dissented from and the Calcutta view was accepted. It was observed : "an agreement not to execute a decree, if effect is sought to be given to such agreement in execution proceedings, must be a transaction between the parties subsequent to the decree and not one which would make the decree itself void as being in its contravention " In Co operative Bank, Harsana Kalan vs. Ram Sarup Ravi Datt (10) Kapur J. took the view as set out below : "the jurisdiction of an executing Court extends to extends to executing the decree or not executing it, only when it is without jurisdiction. Merely because there was an agreement previous to the decree that the debtor will have no further liability, limited or unlimited, is not a ground of jurisdiction, but can only be raised as a bar to the making of the award. Once the award is made it operates as a decree which the executing Court cannot refuse to execute. " ;