Kakuramji vs Mantripragada Bapiraju

Chandra Reddy, J.—This appeal arises put of the execution, proceedings in O.S. No. 252/47. It raises a Point whether an agreement entered into between the parties pending a suit could be pleaded in bar of execution of a decree against the Appellant. The short facts arc these:

The Respondent filed a suit for dissolution of partnership and for taking of accounts in the Court of the District Munsiff of Parvatipur against Defendants 1, 2 and the deceased brother of Defendants 3 to 6, the 1st Defendant being the Appellant herein. During the pendency of the suit, an agreement was entered into between the 1st Defendant and the Plaintiff, the main tonus of which arc as follows:

In consideration of the 1st Defendant giving up his contentions in the suit he should be paid a sum of Rs. 750/- out of Rs. 2,000/- deposited by the Plaintiff with one Varanasi Suryanarayana and that the Plaintiff should execute a promissory note for Anr. sum of Rs. 250/- while the balance of Rs. 1250/- in the. hands of the said Suryanarayana could be withdrawn by the Plaintiff. The 1st Defendant should have nothing to do with either the benefits or the losses in the suit. If any decree should be passed in his favour ho should execute it for the benefit of the Plaintiff and make over to the Plaintiff the amounts realised thereby after deducting the expenses incurred by him in that behalf.

A preliminary decree was passed in the suit in pursuance of which a commissioner was appointed to take accounts. On the report submitted by him, a final decree was passed on 14-9-1948 awarding to the Plaintiff Rs. 2345-2-6 with interest thereon at 6 per cent, per annum from 1-8-48 and costs against the 1st Defendant.

The Plaintiff levied execution of this decree against the 1st Defendant. The latter pleaded the pre-decretal arrangement above mentioned in bar of execution. The courts below overruled the objections and directed the execution to proceed''. The 1st Defendant who is dissatisfied with this decree has filed this second appeal.

In support of this appeal, it is argued by M r Ramanarasu that the view of the lower appellate court that the agreement in question could not by put forward in bar of execution is erroneous and the rulings relied on by it are irrelevant. It is contended by him that the decree is not executable by virtue of the agreement and calls in aid a Full Bench ruling of the Madras High Court in Adapa Papamma and Another Vs. Darbha Venkayya and Others, (A), which has laid down that an agreement not to execute a decree relates to execution and does not in any way attack the decree itself, nor does it attempt to vary the terms of the decree. This decision affirmed an earlier Full Bench decision of the same court in Chidambaram Chettiar v; Krishna Vathiyar ILR 40 Mad 233: (AIR 1918 Mad 1174) (B). The principle underlying the last-mentioned ruling is contained in the following passage:

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 and) decided by the executing court.

The later Full Bench was necessitated by the attempt made in some decisions to limit it to the postponement of the execution. The later Full Bench decision has been followed by a Bench of that court in G. Meenakshisundaram Aiyar Vs. Swaminatha Aiyar, (C) extending the principle to agreements reached between the passing of the preliminary and the final decrees and exempting some items of property from execution. It is. not necessary to multiply citation. I express my respectful accord with the aforesaid rulings. What follows from this discussion is that an agreement between two parties! to an action to the effect that one of the Parties would not execute a decree to be obtained against the other could be pleaded in bar of the execution.

If this agreement comes ''within the purview of the rules stated in the aforesaid cases, the Plaintiff could not carry into effect his decree. To get over this difficulty Mr. Ramamurthy tire learned Counsel for the Respondents urged that the Appellant could not bring to his aid the agreement as it attacks the very decree. According to him, the contingency of a decree being obtained against the 1st Defendant and the Plaintiff taking out execution was not contemplated and the only understanding between the parties was that any decree to be made against the Plaintiff should not be executed by the 1st Defendant.

I must first reject his argument that this agreement attacks the decree which was not passed by that time. The agreement that the Plaintiff should not proceed against the 1st Defendant in execution of any decree that might be made in his favour 5s implied in the terms that the 1st Defendant should not contest the suit and that he was unconcerned with the benefits or the losses in the suit. The losses in the suit could only refer to any decree that might be recovered against him. In this view of die matter, Atmakuru Butchiah Chetti Vs. S. Tayar Rao Naidu and Others, (D), cited in the order of the lower court and relied on by Mr. Ramamurthy which rules that Chidambaram Chettiar v. Krishna Vathiyar (B), only covers agreements which relate to execution and not agreements that attack the decree itself is not relevant in this enquiry.

Of course, if the agreement was that no decree should be obtained against him and not that a decree to be obtained should not be put into execution, it would fall outside the purview of the doctrine laid down in either Papanna v. Venkayya (A), or Chidambaram Chettiar v. Krishna Vathiyar (B). In these circumstances, I think that the order under appeal cannot be sustained and has to be reversed''. The result is, the appeal is allowed. In the circumstances, I make no order as to costs. No leave.