1. This second appeal has been preferred by certain persons, who hold the position of judgment-debtors, while the respondent fills the position against them, of decree-holder. The circumstances which led to the suit, out of which this appeal has arisen, are as follows:
2. The respondent had obtained a decree upon the 21st February 1906 for the recovery of Rs. 2.300. On the 21st of July 1906 in consequence of execution proceedings set on foot by the respondent a 4 anna share in Kaul Modipur, which belonged to the appellants, was sold and purchased by the decree-holder for Rs. 1,700; there remained, therefore, a balance still due in favour of the decree-holder.
3. Before the sale of the 4 anna share had been confirmed by the Court, the parties, on the 17th of August 1906, entered into an agreement whereby the decree-holder agreed to give up 1 anna share out of the 4 annas purchased by him to the appellants and also to remit the balance due; the appellants on their side agreeing to put the respondent in possession of 3 anna out of the 4 anna share purchased by him and to relinquish in his favour any rights held by them over the sir land in 'the 3 anna share as exproprietary tenants of the same. The decree-holder did not certify to the Court this adjustment of the decree and the appellants on the 13th November 1906 informed the Court of the adjustment and applied to it to issue a notice to the decree-holder to show cause why such adjustment should not be recorded as certified.
4. In the petition which the judgment-debtors put before the Court they made no mention of the covenant on their part to put the respondent into peaceful possession of the 3 anna share and so far as the petition showed there was no consideration on their part for the adjustment of the decree.
5. The decree-holder on receiving notice filed an objection in which he set out the covenant binding upon the appellants and pointed out that they had not surrendered the cultivatory holding, nor put the decree-holder in actual possession of the sir land and this being so under the terms settled between them, the agreement became void.
6. Both the Courts below have found that the appellants have not performed the part of the agreement relating to them. Their excuse is that they have not done so because the sale has not been confirmed and they have not acquired exproprietary rights. This finding, which was not attacked in the petition of appeal, appears to us fatal to the appellants' case. At the same time, as the question may still arise and may lead to farther litigation between the parties, we heard the learned Vakil for the appellants upon the question as to whether the agreement was one which could be enforced. The learned Vakil addressed to us a very able and exhaustive argument referring us to several decisions both of the English and Indian Courts, but he failed to satisfy us that an agreement to relinquish exproprietary rights in sir land Was an agreement which could be enforced by a Court, Civil or Revenue. The current of decisions in this Court is against the argument advanced by him. A great part of his learned, argument was based upon the fact of the surrender of the holding. Now the transaction between the parties, so far as we have heard it, does not appear to us to have been a surrender; on the contrary it was if anything an agreement by the appellants to transfer their rights in the exproprietary holding in favour of the respondent for consideration. Even supposing the appellants are still willing and have the intention of transferring their exproprietary rights, we do not think that this affects the question before us.
7. The Court would, on the application of the decree-holder, be rendering it compulsory on the appellants to transfer their rights. We merely state this in the hope the parties will still be able to carry out some amicable arrangement between themselves, an end which is eminently desirable.
8. The appeal is dismissed with costs including in this Court fees on the higher scale.