Sulaiman, Ag. C.J.
1. This appeal arises out of certain execution proceedings which were objected to by the judgment-debtor. The appellant Ganga Dihal had obtained a decree for costs against Ram Oudh and others jointly. He applied for execution of this decree principally against Ram Oudh the judgment-debtor. The judgment-debtor filed an objection to the application for execution pleading that the decree had been adjusted out of Court, and in that very objection prayed that the payment of the decree may be caused to be certified by the decree-holder. The Court below has held that the objection can be entertained and has found in favour of the objector and dismissed the application.
2. The first point raised before me is that the prayer for adjustment should have been made before the application for execution was filed and that the payment ought to have been certified and recorded in a separate proceeding previous to the execution application. Strong reliance is placed on the case of Baijnath v. Panna Lal A.I.R. 1924 All. 706. In my opinion that case must now be taken to have been overruled by the Full Bench case of Joti Prasad Sri Chand : AIR1928All629 . It seems to me that it is not necessary that the application praying for the adjustment to be recorded should be a document separate from the objections filed by the judgment-debtor.
3. The adjustment was alleged to have been made on 28th March 1927, and the prayer for the adjustment to be recorded was made on 9th May 1927. The judgment-debtor's application was therefore within 90 days as required by Article 174, Lim. Act, and could be entertained. No doubt the alleged adjustment was disputed by the decree-holder. But it is now clearly settled that the Court even in case of such dispute can enquire into the matter and record the adjustment if it is proved. The expression 'the decree-holder fails to show cause' in Order 21 Rule 2, Sub-clause (2) obviously does not merely 'mean fails to appear' but would include fails to satisfy the Court'. Lachman Das v. Baba Ram Nath Kali Kamliwala A.I.R. 1922 All. 13, was also a case where the decree-holder was denying the adjustment and the Court assumed that the matter could be enquired into.
4. Ram Oudh's case was that the parties agreed that he and his brothers would execute a sale-deed of 2 pies share for Rs. 200 and pay Rs, 300 in cash and in lieu of it the decree-holder would exempt them from the execution proceedings arising out of the joint decree which amounted to just over Rs. 1,000. The decree-holder denied any such adjustment. The objector went into the witness-box and produced one of the two attesting witnesses to a receipt executed by the decree-holder and also another witness. The Court below after hearing the evidence has come to the conclusion that the decree-holder's denial is untrue and that he must have been paid Rs. 300 as evidenced by the receipt. As the receipt has come out of the possession of the objector and he is corroborated by the evidence of two witnesses I see no reason to take a different view of the evidence from what the Court below has done. Ram Oudh further stated that the agreement was that on the receipt of the consideration of Rs. 500 the decree-holder would exempt his group from the execution proceedings. His two witnesses said that the agreement was that their property would be released. When one set of the judgment-debtors took all the pains to execute a sale-deed in favour of the decree-holder and also pay Rs. 300 in cash, the total amounting to half the decretal amount which was the extent of their liability, it is only natural to suppose that the understanding must have been that they would be released from all further liability. The oral evidence on this point is positive and the Court below has believed it. I accordingly see no reason to record a different finding. The contract between the parties was not reduced into the form of any document. The sale-deed and the receipt were executed in pursuance of it.
5. The learned advocate for the appellant has urged that oral evidence to prove an adjustment under which the judgment-debtors were to be released from all further liability was inadmissible in evidence under Section 92, Evidence Act. He has relied on the case of Laahman Das v. Baba Ram Nath Kali Kamliwala A.I.R. 1922 All. 13. Piggott, J., did not express the view that Section 92 was a bar to the proof of such an adjustment. His judgment was based on the finding that in that case there had in fact been no adjustment of the decree at all but that there was merely an oraL agreement to adjust the decree which agreement had not been carried out. He came to the conclusion that in the execution proceedings the question of enforcing the specific performance of such an oral agreement did not arise. On this point Walsh, J., agreed with him, though he was inclined to regard the judgment-debtor's application as 'in substance a suit for specific performance'. No doubt he further expressed the view that the plea of adjustment amounted to setting up a new contract in substitution of the original decree and that such agreement could not be proved by verbal evidence in view of the provisions of Section 92. Being an opinion of a single Judge it is not absolutely binding upon me. With due respect, I am unable to agree that Section 92 is any bar to the proof of such adjustment. That section refers to any contract, grant or other disposition of property as well as any matter required by law to be reduced to the form of a document. But the words as between the parties to any such instrument 'suggest that the section applies to dispositive documents between contracting parties. A decree is not an instrument' between parties in the sense in which that expression is used in this section. I therefore do not think that a decree is covered by this section. It is also doubtful whether a proof of a subsequent adjustment of a decree can be said to amount to contradicting, varying, adding to or subtracting from the terms of the decree. A subsequent payment or adjustment of a decree is by no means a variation of its terms. I am therefore unable to hold that oral evidence to prove a subsequent adjustment, under which part of the decree was paid and the rest agreed not to be executed against the judgment-debtors, is inadmissible in evidence.
6. I may mention that in many cases where the decree-holder, on receipt of consideration, agreed to an adjustment, and subsequently denied the adjustment and did not certify it to the Court, the judgment-debtor's remedy to sue for damages for breach of the contract has been well recognized. In all such suits oral evidence to prove the adjustment has of course to be admitted. The result therefore is that this appeal is dismissed with costs including in this Court fees on the higher scale.
7. P.S. Some days after the delivery of this judgment my attention was drawn to a Calcutta case, 24 I.C., 391, where also the opinion was expressed that a decree is not covered by the section.