T. Venkatasubba Mudali vs Manickammal and Another

Wallace, J.—The point for decision is whether it is open to a judgment debtor to plead in bar of execution of a decree against him a

predecree arrangement that the decree was not to be executed. The Lower Court has held that it was not so open to him, relying on three

decisions of this Court, which in my view, so far as they may be used to support his view, run counter to the general trend of decisions in this

Court, The most important decision on this point is the Full Bench case in Chidambaram Chettiar v. Krishna Vathiyur (1916) 32 MLJ 13 The

question referred to the Full Bench there was whether a predecree arrangement to postpone the execution of a decree for a certain time can be

pleaded as a bar to immediate execution. Two learned Judges of the Full Bench held that it could, and another learned Judge differed. The former

based their decisions on the principle stare decisis, the previous cases relied on by them and on which they elected to stand being V. Rama Aiyer

Vs. S. Sreenivasa Patter, Krishnamachariar by his Next Friend, Andalammal Vs. Rukmani Ammal, and Subramania Pillai v. Kumaravelu Ambalam

ILR (1916) M 541 Now, curiously enough, it was not noticed and has been overlooked also in other judgments on this matter that V. Rama Aiyer

Vs. S. Sreenivasa Patter, is not really in point. The agreement in that case was post decree and not pre-decree. The other three cases lay down in

general terms the principle that a pre-decree arrangement that a decree, when obtained, should not be executed can be pleaded in bar of

execution. The Rukmani Ammal v. Krishnamachariar ILR 1919 M 541 and Subramania Pillai v. Kumaravelu Ambalam ILR (1916) M 541 follow

the Full Bench rulings in Laldas v. Kishordas ILR (1896) 22 Bom. 463 No previous authority was quoted in the Krishnamachariar by his Next

Friend, Andalammal Vs. Rukmani Ammal, It is clear that these cases lay down a principle wider than the principle raised in the question referred to

the Full Bench. In the Full Bench case the question was whether a pre-decree arrangement for a temporary postponement of execution can be

pleaded; while in the three cases above-quoted, the general principle was that a pre-decree arrangement not to execute at all can be pleaded. The

concurring judgment in the Full Bench proceeded however on the footing that this general principle adopted furnishes the answer to the question

raised, although it is not necessary for the decision to go so far as the three cases above quoted. I have no doubt that the concurring Judges did

intend to take their stand on the wider principle enunciated in these cases, and that they meant to uphold and confirm that principle and lay down

that this Court in doing so was proceeding on the principle of stare decisis.

Subsequently to Chidambaram Chettiar v. Krishna Vathiar (1916) 32 MLJ 13 there have been two divergent lines of decisions. One follows the

general principle already stated for example Sambasiva Aiyar v. Thirumalairamanujathathachariar (1918) 37 MLJ 356 in which it is adopted in the

clearest terms as inherent in and flowing from the Full Bench decision and Veluthevan v. Krishnaswami Reddi (1924) 48 MLJ 277 to which one of

us was a party. The other set of cases springs from the ruling in Arumugam Pillai Vs. Krishnaswami Naidu and Others, but before that is

considered, reference may be made to the case in Singa Raja and Others Vs. Pethu Raja and Others, That case turned on a rather strict

interpretation of O.34 and not on this general principle, and no reference was made either to Chidambaram Chettiar v. Krishna Vathiyar (1916) 32

MLJ 13 or Arumugam Pillai Vs. Krishnaswami Naidu and Others, In Arumugam Pillai Vs. Krishnaswami Naidu and Others, which was decided in

1920, one learned Judge held that Chidamabram Chettiar v. Krishna Fathiyar (1916) 32 MLJ 13 ""does not oblige us to extend the principle to the

extent required by the appellant''s contention."" I would point out that the one case referred to by the learned Judge, Oldfield, J., as the only case

appearing in the authorised reports supporting the appellant''s contentions before him is Rama Ayyan v. Srinivasa Pattar (1895) 32 MLJ 13 which

as I have observed, has no application to a pre-decree arrangement while the learned Judge has overlooked Subramania Pillai v. Kumaravelu

Ambalam ILR 1916 M 541

Next comes, the case in Mallayya v. Chinna Kottayya (1921) 14 LW 317 which really seems to me hardly in point. It was a case of a presuit,

and not of a pre-decree arrangement, which the learned Judges held could and should have been pleaded as an absolute defence to the suit. This

was sufficient for the disposal of the case but the learned Judges went on to consider the general question of the right of a party to plead a pre-

decree arrangement in bar of executions, and referred to the cases already quoted. The Full Bench case is put aside on the ground set out in

Arumugam Pillai Vs. Krishnaswami Naidu and Others, but it is quoted at the end of the judgment as supporting the plea that the agreement in that

suit could not be pleaded in bar of execution. It is clearly a case distinguishable from Chidambaram Chettiar v. Krishna Fathiyar (1916) 32 MLJ

13 The next case is K.V.R. Rm. Vr. Ramanathan Chettiar (dead) and Others Vs. A. Venkatachellam Chettiar (dead) and Others, passed in 1923

which was decided on the ground that the agreement there pleaded was more similar to the one in Arumugam Pillai Vs. Krishnaswami Naidu and

Others, than to that in Chidambaram Chettiar v. Krishna Fathiyar (1916) 32 MLJ 13.

In this divergence of authority I think we are bound to follow the Full Bench ruling which does undoubtedly adopt and follow the general

principle laid down in Kukmani Ammal Krishnamachariar (3), Krishnamachariar by his Next Friend, Andalammal Vs. Rukmani Ammal, and

Subramania Pillai v. Kumaravelu Amba lam ILR (1916) M 541 and hold to the principle which has been followed since 1903 until it was doubted

in Arumugam Pillai Vs. Krishnaswami Naidu and Others, It is essential that in such matters, there should be uniformity of procedure, and I see no

reason to refer the case again to a Full Bench as we have been requested to do.

We must therefore reverse the decision of the District Judge and direct him to rehear the case. Costs up to date will abide the result.

Madhavan Nair, J.

I concur with my learned brother throughout in his judgment. I have not been convinced by the arguments of Mr. T.R. Ramachandra Aiyar that

the decision in Veluthevan v. Krishnaswami Reddi (1924) 58 MLJ 277 to which I was a party does not lay down the correct law. It was held in

that case that a judgment-debtor could plead in bar of an execution a pie-decree arrangement between him and the decree-holder that the decree

should not be executed. That decision was based upon the Full Bench ruling in Chidambaram Chettiar v. Krishna Vathiyar (1916) 32 MLJ 218

The decision in Krishnamachariar by his Next Friend, Andalammal Vs. Rukmani Ammal, Rukmani Ammal v. Krishnamachariar (1911) 9 MLT

464 and Subramania Pillai v. Kumaravelu Ambalam ILR (1916) M 541 which lay down the general principle that an arrangement prior to a decree

not to execute the decree at all can be pleaded in bar of an execution furnished the ground for the decision in the Full Bench case. These cases laid

down a principle wider than the one raised in the question referred to the Full Bench. There can be no doubt that the learned Judges who decided

the case in Chidambaram Chettiar v. Krishna Vathiyar (1916) 40 M 233 accepted the principle of these three cases as correct law. The decision

mainly relied upon by Mr. T.R. Ramachandra Aiyar in Arumugam Pillai Vs. Krishnaswami Naidu and Others, as pointed out by my learned

brother, refers to V. Rama Aiyer Vs. S. Sreenivasa Patter, which has no application to a pre-decree arrangement and overlooks the decision in

Subramania Pillai v. Kumaravelu Ambalam ILR (1916) M 541 and apparently brushes aside the decisions mainly relied upon in the Full Bench

case on the ground that they do not appear in the authorised reports. The other decisions quoted for the respondent, namely, Singa Raja and

Others Vs. Pethu Raja and Others, Mallayya v. Chinna Kottayya (1921)14 LW 317 and K.V.R. Rm. Vr. Ramanathan Chettiar (dead) and

Others Vs. A. Venkatachellam Chettiar (dead) and Others, do not advance his contentions in any appreciable degree.

In this state of authorities I agree with my learned brother that we are bound to follow the Full Bench ruling, and reverse the decision of the

District Judge and request him to re-hear the case. The costs up to date will abide the result.