Rangaswamy Reddiar (died) and Others vs Jayalakshmi Ammal

K. Veeraswami, C.J.—The question in this appeal is whether a pre-decretal agreement made subsequent to the suit could be pleaded in bar

of execution. There are two Full Bench decisions of this Court, Chidambaram Chettiar v. Krishna Vathijar ILR (1917) Mad. 233 : 32 M.L.J. 13

and Papamma v. Venkayya ILR (1935) Mad. 994 : 69 M.L.J. 451 : AIR 1935 Mad. 860, which bear on the question. In the earlier case the

parties to the appeals in this Court entered into an agreement with the appellant, who submitted to a decree in a suit by the respondent then

pending against him, that the former should make an arrangement for satisfaction of such decree within a fixed date, and that the latter should not,

before that date, execute or transfer it. The Court by a majority opinion held that the agreement could be pleaded in proceedings taken in

execution of decree. Apparently, this decision was understood in subsequent Decisions- as limited to the proposition that a pre-decretal agreement

could be pleaded only if it related to the mode of execution. But Papamma v. Venkayya ILR (1935) Mad. 994 : 69 M.L.J. 451 : AIR 1935 Mad.

860, made it clear that a pre-decretal agreement not to execute the decree was not in attack of the decree, nor did it vary the terms of the decree,

so that, as the pre-decretal agreement related purely to execution of the decree, it could be pleaded. On facts in that case, there was a., pre-

decretal agreement between the decree-holder and one of the defendants alone that the; decree against him should not be executed. The

agreement was allowed, to be pleaded in bar of the execution against him. The Court referred to the observation of Pakenham Walsh, J., in

Butchiah Chetti v. Tayar Bao Naidu ILR (1931) Mad. 184 : 60 M.L.J. 721 : AIR 1931 Mad. 399, that Chidambaram Chettiar v. Krishna

Vathiyar ILR (1917) Mad. 233 : 32 M.L.J. 13, covered agreements which related to execution and not to an agreement which attached the

decree itself, and held:

This view which reconciles almost all, if not all, the Madras decisions on the subject, is one in which I venture to express my entire concurrence.

The agreement pleaded in the present case is one which relates to execution alone, and does not attack the decree itself, for it is merely an

agreement not to execute the decree as against the first judgment-debtor, and nothing more. It follows therefore that the agreement can be pleaded

in execution, and that the executing Court can determine whether the agreement is true.

Mulla, in his Code of Civil Procedure, Volume I, 13th Edition, refers to Papamma v. Venkayya ILR (1935) Mad. 994 : 69 M.L.J. 451 : AIR

1935 Mad. 860, as laying down the proposition that "" a distinction should be made between an agreement which related to the mode of execution

or satisfaction of a decree and one which had the effect of rendering the decree nugatory and inexecutable in whole or in part and that, while the

former may be pleaded in execution, the latter could not be."" But this is not to say that a pre-decretal agreement was held by Papamma v.

Venkayya ILR (1935) Mad. 994 : 69 M.L.J. 451 : AIR 1935 Mad. 860, as one in attack of the decree or as one which by itself rendered the

decree a nullity or nugatory. A pre-decretal agreement not to execute a decree pre-supposes a decree which is valid and in full force as well as

executable. Such an agreement does not, in any way, vary the terms or affect its validity or denies its existence. There may be cases where a pre-

decretal agreement possibly involves a fraud practised on Court, on the basis of which it is made to pass a decree. We are not concerned in the

instant case with such cases. Here, the agreement, made subsequent to the suit and prior to the decree, was merely an understanding that the

decree passed should not he executed. That recognises that such an agreement can well be pleaded, as it relates to execution of the decree and is

within the purview of Section 47 of the Code of Civil Procedure.

We are aware that in Papamma v. Venkayya ILR (1935) Mad. 994 : 69 M.L.J. 451 : AIR 1935 Mad. 860, the pre-decretal agreement was

between the decree-holder and one of the defendants. But that, on principle, could make no difference to the view we have taken.

Some question has been raised as to the factum of the pre-decretal agreement. But the finding, in our view, is well-founded.

The appeal is dismissed with costs.