Bhirgunath Prasad Singh vs Mt. Annapurna Dai Sijuarin

Fazl Ali, J.—The question to be decided in this appeal is whether it has been preferred in contravention of an agreement arrived at between the parties on 28th July 1933. The respondent is admittedly the mukarraridar of 12 annas share in village, Kujap under a lease which was executed on 8th October 1898 by one Paras Nath Singh a predecessor-in-interest of the appellant. Under the lease a sum of Rs. 1,275 was payable by the lessee as the annual rent and Rs. 111 3-0 was payable as cess. It was also provided that if there was a default on the part of the lessee in payment of three consecutive instalments of rent the lessor would be entitled to re-enter. The suit out; of which this appeal arises was instituted by the appellant to eject the respondent on the allegation that there was such a default and also to recover the arrears of rent and cess.

The cess was claimed not at the rate of Rs. 111-3-0 which was payable under the lease but at the rate of Rs. 160. The suit was disposed of by the Subordinate Judge of Gaya on 21st July 1930 partly in favour of the plaintiff and partly in favour of the defendant. It was held that the plaintiff was entitled to rent and cess at the rates claimed but his prayer for ejectment was refused. A decree was drawn up in terms of the judgment on 24th July 1933 and on 27th July 1933 it was signed by the Subordinate Judge. On 28th July the parties jointly filed a petition in the Court below to the following effect:

(1) That the dispute between the parties as raised in the salt has been settled by the decision of this Court as per judgment dated 21st July 1933. (2) That the parties to the suit accept the aforesaid decision as binding upon them and on that basis Rs. 4,422-12-6 is due from the defendant to the plaintiff as shown in the decree. (S) That the defendant has paid the aforesaid sum of Rs. 4,422-12-6 out of Court and the plaintiff hereby acknowledges receipt of the same. (4) That the decree is thus fully satisfied and a note of the same may be ordered to be made in the proper register. (5) That in token of the receipt the plaintiff has put down his signature herein below. It is therefore most respectfully prayed that full satisfaction of the decree may be ordered to be noted.

Now the question to be decided is whether by the terms of the agreement between the parties which had been incorporated in this petition the plaintiff had contracted himself out of his right to appeal and if so, whether there is anything to prevent this Court from giving effect to the agreement. It is true that it has not been expressly stated in the petition that the plaintiff shall not appeal from the judgment of the trial Court, but there can be no doubt that what the parties had agreed to among themselves was that the decision of the Subordinate Judge should be regarded as a final adjudication of the rights of the parties, and it was upon this basis that the defendant made a prompt payment of the sum which had been awarded by the decree to the plaintiff.

Once it is held that the parties had agreed to treat the decision of the Subordinate Judge as final it must also be held that they had agreed by implication that neither party should prefer an appeal against that decision.

Mr.Ganesh Sharma, who appears on be half of the appellant, however contends that the agreement is not enforceable because it was without consideration. In my opinion however this is not a good contention. As I have already stated, the plaintiff bad got a decree for cess at an enhanced rate and it will appear from the judgment of the Court below that one of the pleas taken by the defendant before it was that no decree could be passed at an enhanced rate when under the lease a fixed amount was payable as cess.

It is clear that having agreed to accept the decree passed by the Subordinate Judge and haying paid the entire amount decreed against him, the defendant could not prefer an appeal subsequently against the decision of the Subordinate Judge on the ground that the cess payable by her was what was provided in the lease and not what had been claimed by the plaintiff. The decree being partly in favour of the plaintiff and partly in favour of the defendant, each party gave up something in favour of the other under the agreement and so I am unable to hold that the agreement was without consideration.

It was also contended by Mr. Sharma that the agreement was compulsorily registrable, but he failed to point out under what provision of the Registration Act it was so. The present case certainly does not fall u/s 17 of the Act because the agreement does not purport or operate to create, declare, assign, limit or extinguish whether at present or in future any right, title or interest, whether vested or contingent of the value of One hundred rupees or upwards in any immovable. An agreement to abide by the decree which had been passed in the present case by a Court of competent jurisdiction, even though the decree related to immovable property could not by itself create, declare or extinguish any right or interest in immovable property, because the right had already been declared or adjudicated by the decree and it is not to be assumed that the decree would necessarily have been reversed on appeal.

In Abdul Samad Khan v. Bibijan 1928 Mad 1149 it was held that an agreement not to execute a decree which related to immovable property did not amount to an agreement which created or declared an interest in immovable property and in my opinion the same principle will apply to the present case.

It was next contended that the agreement in question could not be enforced because it contravened the, provisions of Section 28, Contract Act. It has however been held in Anant Das v. Ashburner & Co. (1875) 1 All 267(F B), that an agreement not to appeal against a decree is not a void agreement and is not prohibited by Section 28, Contract Act, and I respectfully agree with that view.

It also appears to me that the plaintiff having by his conduct induced the defendant to make an immediate payment of the decretal amount and having entered into an engagement with her which made it impossible for her to question the decree of the trial Court is now estopped from acting contrary to his undertaking and if any authority is needed for this proposition, it is furnished by the decision of the Calcutta High Court in Protap Chander Das v. Arathoon (1882) 8 Cal 455.

Several decisions were cited by the respondent to support her contention that in the circumstances of the present Case the appellant should not be allowed to prosecute his appeal and I entirely agree with the view expressed in those decisions. In my opinion the appeal cannot be proceeded with and should be dismissed with costs.

James, J.

I agree.