JUDGMENT Srivastava, J.
1. This is a judgment-debtor's appeal and raises an important question relating to execution of decrees.
2. A compromise was arrived at in this case between the parties which provided:
"That the plaintiff and the defendants have arrived at a compromise and accordingly they hereby pray that the suit be decreed with full costs (Contested) and interest pendente lite and future at the rate of 6 per cent per annum."
A decree was passed in terms of this compromise. The decree-holder got the decree transferred for execution to another Court and applied for execution. The judgment-debtor a firm then put in an objection in which it put forward a pre-decree agreement and urged that in view of that agreement it was not open, to the decree-holder to get the decree executed. According to the judgment-
debtor the decree had been passed in pursuance of an agreement the terms of which were as follows :
'"A That the parties should state before Court that they have arrived at a compromise and a decree be passed.
B. That the defendants shall not press their pleas for adjudication.
C. That the plaintiff shall realise the decretal amounts from:
(i) The attached Coal Bills of Rs. 3,674/5/-due to Rajendra Kumar Aron Prop. Krishna Raj Trading Corporation, from the Executive Engineer, Colonisation Dn. Mcerut.
(ii) The attached Coal Bills of Rs. 2,415/8/9 due to the aforesaid objector (Rajendra Kumar Aron) from the District Co-operative Development Federation Ltd. Fatehpur. (Under District Planning Officer, Fatehpur).
(iii) The sum of Rs. 5,569/14/6 from Messrs. Maheshwari Rice and Oil Mills, Fatehpur which was due to Rajendra Kumar Aron Prop. Krishna Raj Trading Corporation.
(iv) Follow the following procedure to the extent of Rs. 4,000/- (Rs. Four Thousands only) only.
(a) Sri Rajendra Kumar Avon shall secure orders and help to secure orders for the supply of Coal for the plaintiff from various Government and Semi-Government departments and the commissions thus earned by the plaintiff shall be credited to the account of Rajendra Kumar Aron.
(b) That it was further settled that Rejendra Kumar Aron shall make cash payments after one year or so by instalments of Rs. 1,000/- yearly to meet any deficiency that may occur in the payment of Rs. 4,000/- from the commission, fee specified above.
(c) That Smt Krishna Rani shall not he personally liable to pay any amount and that the decree-holder shall not execute the decree against her or her property.
(d) That Rajendra Kumar Aron shall aid the decree-holder in the realisation of money from Executive Engineer, Colonisation Dn. Mowana, D. G. P. F. or D. P. O. Fatehpur and M/s. Maheshwari Rice Mills, Fatehpur.
(e) That the decree shall not be executed against Rajendra Kumar Aron also for the sums of money which are specified, above till the decree-holder has exhausted all his remedies against the above mentioned three sources.
(f) That the decree-holder shall not execute the decree against Rajendra Kumar Aron also for the remaining sum of Rs. 4,000/- only so long as Rajendra Kumar Aron is able to secure orders for the supply of Coal for the plaintiff.
(g) That it was further settled that the attached property at Khaga Dt. Fetehpur shall not be put to sale as it belonged to Sri Virendra Kumar, brother of Rajendra Kumar Aron." The decree-holder denied the agreement set up and raised a preliminary objection that an unconditional decree having been passed, it was not open to the judgment-debtor to rely on a pre-decree agreement and on that basis to object to the execution of the decree. The preliminary objection of the decree-holder found favour with the learned Civil Judge, who rejected the objection without going into the question whether the agreement set up had in fact been arrived at or not. The correctness of that order of rejection is being challenged by the present appeal.
3. Relying on certain decisions of the Madras High Court the learned counsel for the appellant urged that the view of the learned Civil Judge about the judgment-debtor's right to set up a pre-decree agreement in the execution department was not correct and contended that it was open to the judgment-debtor to show that there was such a pre-decree agreement which was binding on the parties and in view of which the decree-holder could proceed in execution only in the manner agreed upon and not in the way in which it wanted to proceed. Learned counsel conceded that under Section 47, C. P. C. it was not open to the executing Court to go behind the decree. He, however, contended that in the present case the judgment-debtor did not want the Courts to go behind the decree. It did not question the decree at all and did not want to vary it in any manner. The only thing it contended was that the manner of the executability of the decree had been agreed upon between the parties and the decree could be executed only in that manner and in no other. He urged that Section 47, C. P. C. could not bar such an objection.
4. The leading case on the point so far as the Madras High Court is concerned, is Chidambaram Chettiar v. Krishna Vathiyar, ILR 40 Mad 233 : (AIR 1918 Mad 1174) (FB). In that case by a majority of two to one the Madras High Court held that it was open to a judgment-debtor to set up an oral agreement subsequent to the filing of the suit and prior to the passing of the decree in order to prevent the decree-holder from proceeding to execute the decree. The majority view of the Full Bench was, however, based on a practice that had prevailed in the Madras Presidency for a long time. Thus Abdur Rahim Offg. C. J. referred at page 231 of the report to the fact that:
"By a long course of decisions in this Residency 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 into and decided by the execuing Court.'' He again referred at page 238 to the practice that had obtained in that Presidency. Seshagiri Ayyar, J. also based his opinion expressly on the practice prevailing in that Presidency and stated that he would have hesitated a great deal before allowing the agreements of the kind if the master were res Integra. The decision was thus based on the principle of stare decision. The dissenting Judge, Phillips, J., was not in favour of deciding the case on that principle. The Full Bench decision was followed by the Madras High Court in a number of cases which it is needless to refer.
5. In Butchiah Chotti v. Tayar Rao Naidu, SLR 54 Mad 184 : (AIR 1931. Mad 399) a Division Bench while interpreting the Full Bench decision in Chidambaram Chettiar's case, ILR 40 Mad 233: (AIR 1918 Mad 1174 (FB) reduced the effect of that decision to a considerable extent and laid down:
"An arrangement between parties to a suit after its commencement and before decree, which has the effect of rendering the decree in executable wholly or in part, but which has not been embodied in the decree, attacks the decree itself and cannot be pleaded in bar of execution".
The position that thus obtained after this later decision in Butchiah Chetti's case, ILR 54 Mad 184: (AIR 1931 Mad 399) so far as the Madras Presidency was concerned was that if the pre-decree arrangement sought to attack the decree Itself it could not be pleaded but if it did not go against the decree but related only to its executability it could be allowed to be pleaded in execution vide Papamma v. Venkayya, AIR 1935 Mad 860. The Madras Full Bench being bindng on the Andhra Pradesh High Court that Court too has been of the same opinion, vide Sait Hemraju Ratanchand Firm v. Subrahmanyam, AIR 1960 Andh Pra 324.
6. The other High Courts in India have taken a different view. Thus in Benode Lal Pakrashi v. Brajendra Kumar Saha, ILR 29 Cal 810 a Full Bench (sic) of that Court held (we are quoting from the head-note).
"A decree being once made it must be taken to be conclusive between the parties. When an instalment decree was duly made, neither an agreement that the payment of a certain instalment would not be enforced, alleged to have been come to between the parties before the decree was made nor a plea of payment of a part of the claim, alleged to have been made before the decree for the full claim was made, can be given effect to."
The same view, was taken in Hassan Ali v. Gauzi Ali Mir, ILR 31 Cal 179. A decree for khas possession was passed in, that case and the judgment-debtor had set up an agreement between him and the decree-holder previous to the decree that he (the judgment-debtor) would not be ousted from the land and permanent rights would be granted to him. It was held that such an objection could not be put forward in the execution department. The decision in Chhoti Narain Singh v. Mt. Rameshwar Koer 6 CWN 796 is similar.
7. The Nagpur High Court in Bhaskar Dattatraya v. Nilkanth Dattatraya, AIR 1938 Nag 265 refused, to permit a judgment-debtor to put forward an agreement which had been arrived at after an award but before the decree had been passed in conformity with that award. The Punjab High Court in Co-operative Bank, Harsana Kalan, v. Ram Sarup, AIR 1953 Punj 267 also laid down, (we are quoting again from the head-note):
"The jurisdiction of an executing Court extends to executing the decree or not executing its only when it is without jurisdiction. Merely because there was an agreement previous to the decree that the debtor will have no further liability, limited or unlimited, is not a ground of jurisdiction but can only be raised as a bar to the making of the award. Once the award is made it operates as a decree which the executing Court cannot refuse to execute".
In Mulla Ramzan v. Maung Po Kyaing, AIR 1926 Rang 140 the Rangoon High Court also held that such a pre-decree agreement could not be set up as a bar to the execution of a decree.
8. The question does not appear to have come up directly for consideration in this Court till now. Only three cases of this Court have been brought to our notice by the learned counsel for the appellant. The first is a Full Bench (sic) decision in Gauri Singh v. Gajadhar Das, 6 All LJ 403. The circumstances of the case were peculiar. The parties in that case had leterred their dispute to arbitration. The arbitrator had given an award which directed that a decree of about Rs. 1,400/- should be passed in favour of the decree-holder. The award also provided the mode in which the amount of the decree was to be paid. Certain debts of the judgment-debtor were to be assigned in favour of the decree-holder for the satisfaction of the decree. Some time elapsed before the award was made the rule of the Court and was converted into a decree. Between the date of the award and the date of the decree the judgment-debtor alleged that in pursuance of the award he had assigned certain debts to the decree-holder in satisfaction of the decree.
When the decree was put in execution he put forward that objection. The decree-holder did not admit that any assignment had been made as was alleged by the judgment-debtor and also contended that the alleged adjustment not having been certified as required by the provisions of the C. P. C. could not be taken cognizance by the executing Court and could not be pleaded as a bar to the execution of the decree. The executing Court gave effect to this contention of the decree-holder and refused to recognise the alleged assignments. In the High Court there was a difference of opinion between Banerji, J. and Richards, J. The former was for dismissing the appeal and the latter wanted to allow it. Under the Rules of the Court then in force the judgment of the former prevailed.
A Letters Patent Appeal was then filed against the judgment of Banerji, J. and a Division Bench allowed the appeal agreeing with Richards, J. and held that the certification of the adjustment alleged by the judgment-debtor was not necessary as it did not appear to be covered by Section 258, C. P. C. 1882 (corresponding to Order XXI, Rule 2 of the Code of 1908) and the adjustment though it had been made after the award could be considered to have been made under the decree and could, therefore, be considered by the executing Court. It must be remembered that when an award is filed and a decree is being passed in accordance with it the decree cannot be different from the award and it is necessary for the Court to pass the decree in accordance with the award as it stands.
It is, therefore, not open to the Court while passing such a decree to take into account something which had taken place after the award but before the decree. It was this fact which weighed with the Division Bench and led it to the conclusion that the adjustment which was alleged to have been made in between the date of the award and the decree could be considered as an adjustment of the decree itself and was not covered by Section 258, C. P. C. 1882. This case is, therefore, not an authority for the proposition that a pre-decree agreement which had taken place after the institution of the suit but before the decree was passed can be pleaded in execution as a bar to the execution of the decree.
9. The next case referred to by learned counsel is Thakur Prasad v. Kasturi Narain, AIR 1935 All 364. That case did not relate to a pre-decree agreement at all. It only considered an arrangement about the manner of the execution of the decree which had been agreed upon after the decree had been passed and it was held that such an agreement could be considered in execution.
10. The third case relied upon is Narain v. Basdeo, AIR 1950 All 437. That case too did not relate to execution at all. In that case a partition suit had been fought between the parties and had resulted in a final decree. The properties to the partition included the division of jajmans in connection with a birt jajmani that was owned by the members of the family. After the final decree for partition had been passed one of the parties filed a regular suit with the allegation that before the partition decree it had been agreed upon between the parties that the defendant in the suit would in spite of the decree deliver to him the pages of some bahis containing the entries relating to certain jejmans mentioned in the plaint. The suit was contested on two grounds. The first was that oral evidence about the agreement could not be admitted in view of the decree which had been passed earlier. The second was that the suit was barred by the principle of res judicata. The former contention was not accepted by the learned Judge on the ground that decree was not a document contemplated by Section 92 of the Evidence Act. The second contention was, however, accepted and it was held that the agreement set up having been arrived at according to the plaintiffs own case before the decree in the previous suit had been passed it could not be made the basis of a subsequent suit and the decree in the earlier case having become, final no agreement prior to the decree could be set up in order to vary the decree itself. This case too does not support the contention that it is permissible in execution for a judgment-debtor to put forward a pre-decree agreement and contend on its basis that the decree is not executable.
11. As far as is known to us, there is no well established practice in this State as the one which weighed so much with the majority of the Full Bench of the Madras High Court in Chidambaram Chettiar's case, JLR 40 Mad 233: (AIR 1918 Mad 1174) (FB). The question so far as this Court is concerned, is res integra and it is open to us to consider the question on merits and to find out for ourselves whether such a pre-decree agreement can be set up in execution of a decree.
12. The terms of Section 47, C, P. C. appear to us to be clear and unambiguous. Only questions relating to the execution, satisfaction and discharge of a decree can be raised under that section. It is well settled that except in certain exceptional circumstances e.g., when the decree is a nullity or patently without jurisdiction, it is not open to the Court to go behind the decree and to question its validity. Nor can the executing Court say that the decree should have been passed in a way different from the way in which it has actually been passed and then proceed to execute it as if it had been passed in that other manner. If, therefore, a decree is clear and unconditional the executing Court cannot on any basis make the decree conditional or hold that it was not intended to be executed in certain circumstances because of an agreement arrived at before the decree was passed. If there was such an agreement the only thing which the parties could do was to bring forward that agreement at the time when the decree was being passed and to have it incorporated in the decree. That not having been done the agreement, if any, must be deemed to have been superseded by the decree and the decree must be given effect in preference to the alleged agreement. Having failed to put forward the agreement at the time when the decree was being passed (for the omission the judgment-debtor could only blame itself) it was no longer open to it to put forward the agreement at the time of execution and to say that the agreement should be honoured and the decree should not be executed on that basis. Setting up of such a pre-decree agreement in the execution department is, it appears to us, not permissible under Section 47, C. P. C.
13. We are also not impressed with the contention of the appellant that the agreement it set up did not affect the decree but related only to its executability. The decree as we have shown was an unconditional decree passed against several judgment-debtors. It was a money decree and could be executed against all of them jointly and severally. The agreement which the judgment debtor set up, however, provided that the decree would not be executable either against the person or property of one of the judgment-debtors Smt. Krishna Rani. It also provided that the decree shall not be executed against another judgment-debtor Rajendra Kumar Aron, as long as he arranged to get coal for the decree-holder. The agreement thus made the decree a conditional decree. As it had been passed it was an unconditional one.
It has also been pointed out by the learned Civil judge that if the agreement set up by the judgment-debtor was accepted the effect would be that the decree would become a useless decree. It is, therefore clear that by setting up the agreement the appellant really wanted the executing Court to alter the decree and to go behind it.
14. The contention of the appellant that the pre-decree arrangement which it set up ought to have been allowed to be pleaded in execution was therefore, rightly rejected.
15. It was urged in the end that some amount had been realised by the decree-holder after the decree had been passed and the judgment-debtor wanted those amounts to be taken into consideration. It is, however, conceded that the alleged realisation had not been certified as required by Order XXI, Rule 2, C. P. C. They could not on that account be taken into consideration by the executing Court.
16. The objection of the appellant was, in our opinion, rightly dismissed and the appeal must fail. It is dismissed. As no one has appeared on behalf of the decree-bolder to oppose it there will be no order as to costs.