Biswanath Somadder, J.

1. This is an appeal on behalf of the plaintiffs in a suitin which they asked for a declaration that their interest in certain propertieswas not affected by an execution sale (in Money Execution Case No. 1430 of1935) on the ground that the sale had been held in breach of an agreement onthe part of the decree-holders not to execute the decree. The plaintiffs alsoprayed, in the alternative, for damages for breach of the agreement. The trialCourt dismissed the claim on either head, while on appeal the lower appellateCourt dismissed the suit against the auction purchaser, defendant 7, butgranted a decree for damages against the decree-holders, defendants 1 to 6, inthe sum of Rs. 100. In the present appeal the plaintiffs have questioned thecompetency of the sale as well as the sufficiency of the damages allowed.

2. The material facts may be shortly stated. On 2lstDecember 1925, defendants 1 to 3 (whose interest is now represented bydefendants 1 to 6) obtained a money decree against the plaintiffs in Money suitNo. 916 of 1924 in the Court of the First Munsif of 24 Parganas. There was anappeal, and while the appeal was pending, a solenama was entered into and filedin another suit which was then pending between the parties, Title Suit No. 194of 1922, before the Fourth Subordinate Judge at Alipore. By this solenama itwas agreed, inter alia, that the defendants would give up their claim in themoney suit and not execute the decree they had obtained, and that theplaintiffs in their turn would withdraw their appeal against the decree. In duecourse a decree followed on the solenama. The plaintiffs afterwards instituteda suit for setting aside the solenama decree (Title suit No. 154 of 1929), andin repudiation of the solenama, they also carried on their appeal m the moneysuit. Both these proceedings ultimately failed. The suit for setting abide thesolenama decree was dismissed by the trial Court on 22nd April 1930, and thiswas finally affirmed in second appeal by this Court some time in 1933 Asregards the appeal in the money suit, this was also dismissed on 10th May 1927,there was thereafter an application in revision to this Court, which orderedare trial, but on re-trial the decree as originally made was restored on 29thJune 1929, and an appeal from the decree was also dismissed in April 1930 Thedecree was then put into execution in Money Execution case No. 1436 of 1935, anda sale held there under on 7th December 1935, at which defendant 7 became theauction purchaser. It is this sale which is the subject-matter of the presentsuit, and the main contention of the plaintiffs is that the solenama was a barto the execution proceeding which resulted in the sale.

3. The lower appellate Court has held, and it is not nowdisputed, that the solenama decree on being finally upheld by this Court insecond appeal became effective between the parties, so as to be operative onthe decree in the money suit as made after re trial That being so theplaintiffs might no doubt maintain that in view of the clear stipulation in thesolenama it was not competent to the defendants to execute the money decree andsell the plaintiffs properties in such execution. In point of fact, it appearsthat shortly after the sale the plaintiffs applied under O. 21, R. 90, CivilP.C., for setting aside the sale on the usual allegations of fraud and materialirregularity, and in the application they raised this specific objection underS. 47 to the competency of the sale. The application was dismissed on 27th July1936 The Court found that there was no fraud or irregularity in publishing orconducting the sale, the sale processes had been all duly served, and the salewas otherwise valid. As regards the effect of the solenama, the learned Munsifobserved as follows:

I do not see how this decree should be the subject of acompromise which was arrived at 3 years earlier. This decree obviously had noexistence at that time.

In saying this, the learned Munsif evidently went by theoriginal date of the solenama (24th March 1926) and the date (29th June 1929)on which the money suit was decreed on re-trial. Whether this was a correctview to take or not, the fact remains that the plaintiffs objection to theexecution on the ground of the solenama was negatived.

4. The same objection has now been renewed by the plaintiffsin the present suit, and to this the defendants raise a two-fold plea in bar,which has been given effect to by both the Courts below It has been held, inthe first place, that the question raised in the suit is one under S. 47, CivilP.C., and the suit it consequently not maintainable, and secondly that it isalso barred by res judicata by reason of the previous decision in theproceeding for setting aside the sale. Both these grounds are strenuouslycontested by the learned advocate for the appellant. Whether the law is on theside of his clients or not, it hardly admits of doubt that their conduct hasvery little of merit in it. Having themselves moved the Court under S. 47 ofthe Code and invited a decision on their application, it is not for them now toturn round and say, because the decision went against them, that neither werethey competent so to have moved the Court, nor was it competent for the Courtto have dealt with the matter on being so moved. And yet this is the positionwhich they must take up in order to sustain their present contentions. Thesecontentions may be now examined.

5. First, as to the bar under S. 47, Civil P.C. This sectionprovides that all questions arising between the parties to the suit in whichthe decree was passed, or their representatives, and relating to the execution,discharge or satisfaction of the decree, shall be determined by the Courtexecuting the decree and not by a separate suit Prima facie it is difficult tosee why such a question, as it sought to be raised by the plaintiffs in thiscase, affecting the decree-holders right to maintain the execution, should notbe regarded as coming within the terms of the section The validity of thedecree is not challenged, but it is merely urged, treating the decree as onewhich was validly passed and would be susceptible of execution in the ordinarycourse, that by a voluntary agreement on their part the decree-holders haddisentitled themselves to realise it by execution. It seems to me that this ispre-eminently a matter for the executing Court to deal with. The ordinary ruleno doubt is that the executing Court cannot go behind the decree, in otherwords, it must accept the decree as it stands, but even so, it has been held bythe Full Bench in (25) 12 : A.I.R. 1925 Cal 907 [LQ/CalHC/1925/280] : 89 I.C.685 : 53 Cal. 166 [LQ/CalHC/1925/280] : 42 C.L.J. 1 : 29 C.W.N. 948 (F.B.), Gora Chand Halder v.Prafulla Kumar Roy, that where a decree is challenged as being withoutjurisdiction the executing Court may go into the question and refuse to executethe decree, if it finds that it was really without jurisdiction. Reference mayalso be made to another Full Bench decision, (29) 16 :A.I.R. 1929 Cal 689 [LQ/CalHC/1929/301] : 123 I.C. 305 : 57 Cal. 1013 [LQ/CalHC/1929/301] : 50 C.L.J. 566 : 34 C.W.N.56 (F.B.), Talebali v. Abdul Aziz, in which it has been held that where anapplication is made for execution of a final decree after the preliminarydecree has been reversed on appeal, it is competent to the executing Court torefuse execution on the ground that the decree having been superseded as aresult of the appeal, it is no longer valid and operative. In the present caseit is not necessary to stretch the rule to this extent, inasmuch as the decreeitself is not impugned as a nullity or attacked on any other ground tending todestroy its every existence, but all that is said is that by reason of certaincircumstances extraneous to the decree, and not impinging in any way upon itsvalidity or operative character, its enforcement has been suspended. As I havesaid, I can find no reason for holding that this is not a matter which maylegitimately come within the purview of the executing Court under S. 47 of theCode.

6. The learned advocate for the appellant referred me tocertain cases in which it has been held that where the judgment debtor objectsto the execution on the ground that prior to the passing of the decree, thedecree-holder agreed not to execute it, the question is one which could not bedetermined by the executing Court under S. 47. Amongst others, reliance wasplaced on (04) 31 Cal 179 [LQ/CalHC/1903/101] , Hasan Ali v. Gauzi Ali Mir, which followed theearlier cases in (02) 29 Cal 810 : 6 C.W.N. 838, Benode Lal Pakrashi v.Brajendra Kumar Saha and (02) : 6 C.W.N. 796, Chhoti NarainSingh v. Mt. Rameshwar Koer. These were all cases of pre-decree agreements, andif I have been able to follow the ratio decidendi in these cases aright, it wasthat the question which fell to be determined was whether or not by reason ofthe agreement there could at all be a decree in the form in which it had beenactually made. That is an entirely different question from what has to beconsidered in the present case. This is a case of a post decree agreement, andeven if it be supposed that on principle there should be no difference betweena pre-decree agreement, and a post-decree agreement, it is still to be observedthat the agreement here does not purport in any way to affect the character orform of the decree. I do not suggest that a post-decree agreement may not inany circumstances be excluded from the purview of the executing Court under s.47, but whether this will or will not be so will depend upon the nature of theagreement If a post decree agreement seeks to affect the character of thedecree, it may no doubt be said that this is a question which could be raisedonly by an independent suit, and not by an application under S. 47 As I havealready pointed out, I do not think that the agreement in this case may beregarded as having any such effect on the decree In my view, it leaves thedecree untouched, and merely seeks to restrain its execution, and it is,therefore, just one of the matters which it is peculiarly within the provinceof the executing Court to consider and determine The learned advocate drew myattention in this connexion to the observations of the Judicial Committee inthe recent case in (39) 26 : A.I.R. 1939 P.C. 80 : 180 I.C.378 : 14 Luck. 192 : 66 I.A. 84 : I.L.R. (1939) Kar P.C. 136 (P.C.), OudhCommercial Bank, Ltd. v. Bind Basni Kuer. The passage on which he relied is atpage 102 of the report:

If it appears to the Court, acting under S. 47, that thetrue effect of the agreement was to discharge the decree forthwith inconsideration of certain promises by the debtor, then no doubt the Court willnot have occasion to enforce the agreement in execution proceedings, but willleave the creditor to bring a separate suit upon the contract If, on the otherhand, the agreement is intended to govern the liability of the debtor under thedecree and to have effect upon the time or manner of us enforcement, it is amatter to be dealt with under S. 47 In such a case to say that the creditor mayperhaps have a separate suit is to misread the Code, winch by requiring allsuch matters to be dealt with in execution discloses a broader view of thescope and functions of an executing Court.

I do not see how these observations assist the appellants inany way. On the contrary, their Lordships state quite clearly that where theagreement is intended to govern the liability of the debtor under the decreeand to have effect upon the time or manner of its enforcement, the matter is tobe dealt with under S. 47 Even in the earlier part of the passage where theirLordships say that the creditor may be left to bring a separate suit upon thecontract, they point out that if it appears to the executing Court that thetrue effect of the agreement is to discharge the decree forthwith, the Courtwill have no occasion to enforce the agreement in execution proceedings,meaning thereby that while it will be open to the executing Court to takenotice of the agreement for the purpose of refusing execution, thedecree-holder will be relegated to a separate suit if and in so far as hewishes to enforce any promises made by the debtor in or as consideration forthe agreement. Where the agreement amounts to an adjustment of the decree, itis a different question whether or not the executing Court may take notice ofit unless the adjustment is recorded under O. 21, R. 2 but their Lordships donot appear to be in any doubt that subject to that, the matter will fall to bedetermined by the executing Court. In the case before the Judicial Committeethe agreement was a bargain for time in consideration of a higher rate ofinterest, and it was held to be an agreement having effect upon the partiesrights under the decree, which it was within the jurisdiction of she executingCourt under S. 47 to recognise and act upon. It may be that the agreement hereis not one giving time to the judgment-debtors, but exonerating them altogetherfrom liability under the decree, but this is a circumstance which in rayopinion makes no difference, in that the agreement still remains an agreementupon terms which, in the words of their Lordships in another part of thejudgment, have reference to and affect the execution, discharge or satisfactionof the decree. There is no reason, therefore, why it cannot be dealt with underS. 47. There is no question in the present case of any attempt by thedecree-holders to enforce in execution any liability under the agreementextraneous to the decree or to the suit in which the decree was passed, forwhich a separate suit might have been necessary. In my opinion, therefore, thefirst point raised by the appellants must be overruled, and I must hold that s.47 of the Code is a bar to the present suit.

7. The appellants second contention in answer to the pleaof res judicata must equally fail. The whole basis of the argument on this partof the case is that the executing Court had no jurisdiction to go into thequestion as to the effect of the solenama on the decree-holders right toexecute the decree, and that any adjudication by that Court on that questioncould not consequently operate as res judicata. As, however, I have shownabove, this was a matter which it was not only within the competence, but alsowithin the exclusive jurisdiction, of the executing Court to deal with under S.47. In particular, it may be added that having regard to the form in which thequestion had been raised in the executing Court, the learned advocate, on hisattention being drawn to it, had himself to concede jurisdiction. The issue inthat Court was in this form: "Is the story of adjustment of the decree bysolenama true, if so, is the execution case at all maintainable" Theanswer which the Court gave to the question was in the negative. Whether thatwas a correct answer or not is immaterial: it remains a fact that the questionhad been raised and decided against the appellants, and I see no reason whythey should be allowed to re-agitate the same question in the present suit.

8. The result is that in so far as the plaintiffs seek tochallenge the competency of the sale on the ground that it was held in breachof the terms of the solenama, the suit must be held to be not maintainable.Their claim to damages for breach of the solenama obviously stands on adifferent footing, and this was not disputed by the respondents. It isnecessary, therefore, to consider the appellants objection regarding thequantum of damages awarded. The learned Subordinate Judge allowed a sum of Rs. 100only, that being the price of the property fetched at the execution sale. Itmay be conceded that this is not necessarily a correct measure of the damageswhich may be claimed by a judgment-debtor for wrongful sale of his propertiesby the decree-holder despite a binding agreement to the contrary. But inassessing damages the Court is undoubtedly entitled to take into considerationthe conduct of the parties. It is quite true that the decree-holders here inputting the decree into execution acted in violation of their undertaking notto execute it, but the plaintiffs on their part were the first to repudiate theagreement. Contrary to the terms of the solenama they prosecuted their appealin the money suit, and then instituted a suit for setting aside the solenamadecree. It was certainly not due to them that both the appeal and the suitultimately failed, and though as a result, as was held by this Court in secondappeal, the parties were restored to their original position under thesolenama, and the appellants could consequently claim the benefit of it in anappropriate proceeding, it does not follow that in a suit for damages forbreach of the agreement, their own conduct should be left out of considerationaltogether, not for the purpose of disallowing damages, but for assessing theamount thereof, In the circumstances of the case, I see no reason for modifyingthe sum allowed by the Court below in this behalf.

9. For the reasons aforesaid, I must affirm the judgment anddecree of the learned Subordinate Judge and dismiss the appeal with costs.

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Girish Chandra Santra and Ors. vs. Purna ChandraBhattacharjya and Ors. (07.05.1943 - CALHC)