Chandra Reddy, C.J.
1. This is an appeal against the judgment of Justice Sanjeeva Row Nayudu, reversing that of the Subordinate Judge, Chittoor. The facts giving rise to this appeal may be shortly narrated.
2. The respondents laid an action (O. S. No. 37/1946) for partition and separate possession of their shares in the joint family properties. On 21-8 1948 there was a preliminary decree passed by consent. In pursuance thereof, a Commissioner was appointed and further steps were taken, ultimately there was a compromise on 15-12-51 which formed the basis of the final decree, by and under which the properties set out in schedules A and A-1 were allotted to the plaintiffs-respondents and those comprised in B and B-1 schedules were allotted to the defendants. The decree provided for taking out execution and obtaining possession through Court.
Subsequently, the respondents applied for delivery of possession of item (i) of A-1 schedule, as well as other properties forming part of A and A-1 schedule, in E. P. Nos. 1 and 2 of 1954. On E. P. No. 1/1954 the Court made an order directing delivery of the properties and in fact some of the properties were delivered, but not item (1) of A-1 schedule. Shortly, thereafter, the judgment-debtors appeared in Court and complained thatdelivery was ordered without notice to them. Thereupon, the executing Court vacated the previous order and after hearing the objections of the judgment-debtors-appellants, delivery of all itemsexcept item (1) of A-1 schedule was again ordered. As there were variations in the descriptions of the properties, time was taken by both the parties for giving correct descriptions and this matter was adjourned from time to time to enable them to furnish correct particulars.
3. Meanwhile, there was an intercession by common friends and matters were adjusted, as the outcome of which Exs. B-1 and B-2 came into existence. We are here concerned with Ex. B-1, which deals with the subject-matter of this appeal which is item (1) of A-1 Schedule. By and under that document, in lieu of this item of property, plaintiffs were to get another property described in schedule A annexed to the agreement which was allotted to the share of the defendants in addition to a sum of Rs. 5000/- payable within six months. It was further agreed that proper document should be executed to give effect to the terms of the agreement.
On 1-2-1955, the appellants filed a petition (styled as a counter) praying that the adjustment of the decree in so far as it bears on the porperty in dispute should be recorded. It appears from the material on record and from the judgment, that the decree-holder did not press the execution petition as regards this item of property. Although it does not appear from the orders for what reason the decree-holder had adopted that attitude, it is legitimate to infer that it was because of Ex. C-J. The result was that E. P. 1/1954 was dismissed.
4. It may be mentioned here that as by that time a portion of the house was delivered by the present appellants, the latter wanted redelivery of the same. But the Subordinate Judge observed that any rights that might flow from Ex. B-l arc to be worked out by separate proceedings. Sometime thereafter, the decree-holder filed another execution petition No. 54/56 for delivery of two items of property inclusive of the one involved in this appeal. Since the trial Court was of opinion that the execution need not proceed so far as item 1 was concerned, it dismissed the whole of the execution petition without confining it to the property in dispute and without deciding whether execution cannot proceed as regards the other item. The aggrieved plaintiff brought an appeal against this order of the Subordinate Judge.
5. Justice Sanjeeva Row Nayudu who heard the appeal set aside the decision of the trial Court on two grounds: (1) that as the matter was referred to arbitrators after the passing of the final decree and an award was given by them, it was not open to the parties to plead the award in defence to the execution proceedings without taking proceedings to get a decree passed in terms of the award, and (2) that Ex. B-1 was inadmissible since it defeats rights of the plaintiff in immovable property. It is this view of the learned Judge that is impugned in this Letters Patent Appeal.
6. It is argued by Shri Narasinga Rao for the appellants that the learned Judge erred in thinking that the counter filed by the appellants referred toan award that was accepted by the parties. He submits that the counter merely recited that on the advice of respectable persons named therein the parties had arrived at the arrangement mentioned above. It is conceded on the other side that the learned Judge was wrong in attributing that statement to the counter-affidavit and that the effect of the couner-affidavit is that stated by the counsel for the appellants. Therefore, there is no question of the arrangement being violative of the provisions of the Arbitration Act. It is not also clear from Ex. B-l as to whether this item of property was referred to the respectable persons for a decision. It is unnecessary for us to dilate any further upon this fact, since admittedly there was no award and it was only an agreement reached between the parties.
7. The other reasoning of the learned Judge is also unsustainable, viz., that it is only a properly executed registered instruments that could affect the property in dispute which was allotted under the decree and that steps not having been taken to carry out the terms of Ex. B-l, no adjustment could be recorded on the basis of Ex. B-1. It is not disputed that a document like Ex. B-1 would come within the terms of Order XXI, Rule 2, as it embodied a contract to do something in future. Under Order XXI, Rule 2, a promise to do something in future or an executory contract could operate as an adjustment of the decree. The absence of registration does not stand in the way of the document taking effect since it contemplates only something being done in future.
8. It is laid down in Ramanarasu v. Venkata Reddi, ILR 56 Mad 198 : (AIR 1933 Mad 28) that a promise to do something in future is legal consideration and there is no legal impediment in the way of a decree-holder accepting a mere promise that the judgment-debtor will do something at some future date as a legal and immediate adjustment in satisfaction of his decree, and that the acceptance of such a promise would constitute a new contract amounting to a legal adjustment of the decree by reason of which the judgment-debtor could apply to the Court to enter up satisfaction of the decree.
9. Udham Singh v. Atma Singh, AIR 1941 Lah 149 (FB) does not contain any doctrine contrary to this. It does not postulate that in order to extinguish a decree or to operate as an adjustment, the contract forming the basis of the adjustment should be fully carried into effect as urged by the counsel for the respondents. On the other hand, it adopts the principle enunciated in ILR 56 Mad 198 : (AIR 1933 Mad 28). The passage on which reliance has been placed as substantiating the proposition that the terms of the contract should be fulfilled before adjustment could be recorded, is as follows:-
'There is nothing in my opinion to prevent the decree-holder and the judgment-debtor entering into an entirely new contract for arranging their affairs so long as the contract is complete and the intention of the parties is to extinguish the decree altogether and to rely upon the new contract A contract to be performed in the future is based on good consideration and so long as the contractcomplies with the rules of law laid down concerning contracts, the decree would he adjusted within the meaning of Order 21, Rule 2. We have been referred to decisions of other High Courts in support of the proposition that an agreement to be performed in the future is not an adjustment. For instance, there is a decision of a Division Bench of the Allahabad High Court reported in Lachmin Das v. Baba Kali Kamliwala, ILR 44 All 258 : (AIR 1922 All 13). In my opinion this decision is no guide. In that case the agreement was that the decree-holder would accept satisfaction of his decree in a modified form and would abandon the execution proceedings which were being taken as soon as four specified conditions had been fulfilled by the judgment-debtor. None of these conditions had been fulfilled. This clearly was not a contract. It was merely inchoate, that is negotiations begun but not completed. The term 'inchoate contract which is sometimes used appears to mo to be a contradiction in terms. There can be no contract until the parties are ad idem. The parties in this case would not be ad idem until the specified conditions had been fulfilled.'
10. We fail to see how these remarks could lend any colour to the argument advanced on behalf of the respondents. The sentence that an incomplete contract cannot be operated as an adjustment does not mean that the terms of the contract should have been executed. All that it suggests is that the contract should not be inchoate. In fact, the earlier part of the passage clearly vouches that a contract to be performed in future is founded on good consideration and a decree could be adjusted on the basis of that con-tract.
11. We cannot agree with the learned Judge that because it was not already certified and recognised by the Court, the executing Court had no jurisdiction to take cognizance of any such settlement or adjustment. It has to be borne in mind in this case that the request to record adjustment was made within less than 50 days and if the party pleading adjustment satisfies the Court that there was an adjustment, it has to be recorded. All that could be predicted is that if the satisfaction and adjustment made outside the Court is not brought to the notice of the Court within the requisite time, it is riot open to the judgment-debtor to plead it subsequently. The Seamed Judge overlooked the fact that the request was made for recording satisfaction which had taken place within less than three months. Since it was not already recorded, the judgment-debtor could request the Court to record it.
12. It was lastly contended by Shri Bhujanga Rao, that if the decree is treated as having been extinguished on the basis of Ex. B-1, without the terms thereof being carried out, the parties will be put to considerable inconvenience and that it is desirable that the execution petition should be kept pending, so that the parties may give effect to the terms of Ex. B-1, viz., executing necessary documents and payment of Rs. 5000/-. For this course the other side has no objection. They also welcome the same as that would obviate the necessity to file a suit on the basis of Ex. B-1 since already a portion of item 1 has been delivered to therespondents. In these circumstances, we direct the execution petition to be kept pending till the parties execute the documents on the foot of Ex. B-l and the appellants pay Rs. 5000/- with interest at nine per cent from 1st July, 1955 to the Respondents.
13. We are told that the appellant had deposited Rs. 5000/- on 16-11-56 and the money is still in Court. If so, the respondents would be at liberty to withdraw this amount with the interest that might have accrued thereon and the appellants will pay the balance of interest due to the respondents before the 31st of March, 1964. The parties will be allowed to execute the necessary documents before the 31st of March, 1964.
14. With regard to the other item of properly which was included in the execution petition, the respondents will be entitled to proceed with the execution of the E. P. if there are no objections thereto.
15. With these observations the appeal is allowed and the parties will bear their own costs throughout.