Rama Subba Iyer vs Sankararamakrishna Avadhanial and Others

The assignee D. H. is the applt. The suit was for recovery of money due under a hypothecation bond executed by the father of defts. 1 to 6. The other defts. were the prior and the puisne encumbrancers over the property. The decree in the case was passed on 22-12-1121. Prior to the date of the decree on 12-12-1121 an agreement embodied in Ex I was entered into between the applt. and deft. 3. Ex. I stated that the applt. was going to take an assignment of the decree, as soon as it was passed, for Rs. 13500 and also provided that if within 3 months of the date of the assignment deft. 3 pays the said sum of Rs. 13600 with 6 % interest thereon and the costs of the assignment then the applt. will enter satisfaction of the decree. The applt. took the assignment of the decree as contemplated. He filed execution appln. for recognition of the assignment and for execution of the decree. Defendant 3 deposited the amount agreed upon in Ex. I within the time stipulated therein and prayed that satisfaction of the decree may be entered. This was objected to by the assignee D.H. While admitting Ex.I be contended that deft. 3''s appln. is not maintainable and that the is entitled to execute the decree for the entire amount covered under the decree. The ct. below repelled the contentions of the assignee D. H. and directed satisfaction of the decree to be entered. The appeal is directed against this order.

The main point urged in appeal is that the assignment evidenced by Ex. I is a pre decree arrangement which cannot be gone into in execution. The applt. before us was not a party to the suit O. S. 98 of 1114. Exhibit I embodies only an agreement between the applt. who was then a stranger to the action and deft. 3. The principle enunciated in Padmanabhan Krishnan v. Vallabdas Lalldbhai 25 T. L. R 123 F.B. and the subsequent decision reported in Krishna Pillai V. Kolappa Pillai 28 T. L. J. 279 Domini v. Thomas 28 T. L. J. 1095 ; Kurien Chandy v. Joseph Abraham 30 T. L. J. 838 and Chacko v. Auguthy 30 T. L. J. 842, that pre-decree agreement cannot be pleaded as a bar to execution relate only to agreements between the parties to the suit and has no appln. to agreements with a stranger as In the present case. These decisions, therefore, do not apply to the facts of this case. The assignment itself was taken only after the decree in the suit. was passed. We do not think that the agreement in the present case amounts to an abuse of the process of the Ct. or is opposed to public policy. Therefore, we see no justification in extending the principle enunciated in the above decisions which is confined to the parries to the suit to agreements of the nature in question with strangers to the action. We do not think that deft 8 is precluded from a pleading the agreement in execution and to have the decree satisfied on the terms specified in Ex. I.

It is next contended that even if the adjustment contemplated in Ex. I can be pleaded as a bar to the execution the provisions of Order 21, Rule 2. CPC (CPC) precludes deft. 3 from agitating the matter now in execution in so far as no adjustment has been certified within the time allowed by law. We are unable to agree with the contention. The agreement pleaded in the case was reached at a time when the decree had not been assigned and long before the assignee appld. under Order 21, Rule 14, C.P.O for the recognition of the assignment in his favour. We think that agreement of the kind embodied in Ex. I though not certified under Rule 2 can be pleaded by the J. D. in bar of execution (vide Brajabashi Modak and Others Vs. Manik Chandra Modak,

The learned Advocate for the applt. further contends that in any event Ex. I agreement contemplates only to exonerate deft. 3 from liability under the decree on payment of the amount mentioned therein and that the assignee D. H. can,therefore, execute the decree for the balance against the other defts. and the property. The decree is for recovery of the amount from plaint Sch. A properties excluding the interest of defts. 8 and 10 in Sch. A items 1, 3 and 4 and also from the assets of the deceased father of dafts. 1 to 6 in their hands. It was with reference to the debt of the father which matured into the present decree that the agreement Ex. I was entered into by deft. 3 one of the children. We have carefully read Ex. I and we are of the view that what was contemplated under it was the discharge of the entire liability under the decree on payment of the amounts stipulated in Ex. I within the time specified, The assignee D. H. now wants to go back upon the agreement though he admits Ex. I and wants to recover the entire decree amount. Having consd. all the facts and circumstances of the casa we think that the decision of the lower Ct. is correct and does not call for any interference. The appeal is, therefore, dismissed with costs.