1. This is an execution first appeal by certain judgment-debtors. The respondent Rukia Begam was the widow of one Muhammad Husain. The judgment-debtors-appellants are the remaining heirs of this gentleman. The respondent had a claim for dower-debt against the estate of her late husband and admittedly this claim much exceeded the entire value of the estate. The lady brought a suit, and it is admitted that a sum of Rs. 27,030 was due to her under a decree obtained in the said suit. The application out of which this appeal arises was one by the judgment-debtors for an order certifying that this decree for Rs. 27,000 bad been completely satisfied. Their case is that a sum of Rs. 14,000 bad been paid to the decree-holder out of Court and that the decree-holder had herself certified personally before the execution Court the receipt of the aforesaid sum of Rs. 14,000. They stated further that, by an agreement between the parties arrived at about the same time, it was settled that the balance of Rs. 13,000 should be paid off in accordance with the terms of a somewhat complicated compromise. It seems that in this compromise two items of immoveable properties were referred to, a house and a Zemindari share, The house is valued at about Rs. 5,000, and it is provided that the judgment debtors shall either pay Rs. 5,000 to the decree-holder or make a conveyance in her favour of the house itself. With regard to the Zemindari share it is provided that there is to be a valuation of the same by oertain chosen arbitrators and that the judgment-debtors shall have the option of either conveying the property itself to the decree-holder or paying to her the amount of the valuation. The case for the judgment-debtors is that this Zemindari share has been valued at Rs. 2,068 and that they have paid this amount into Court for the credit of the decree-holder. The decree-holder's case is that the compromise was obtained from her by fraud. With regard to the sum of Rs. 13,000 she says she never received payment of the same, but was induced to go into Court and falsely state that she had done so by the false representation conveyed to her on behalf of the judgment-debtors that, if she did not do this, one or more of them was likely to be sent to prison by order of the execution Court. She further said that, even when she made this statement by which she understood herself to be abandoning her claim to Rs. 14,000 out of what was due to her under the decree, she believed that the rest of the arrangement come to was that the judgment-debtors would pay her Rs. 13,000 in cash within a short interval of time. She says she never knew or understood that, as an alternative to the payment of Rs. 13,000 in cash, the judgment-debtors were to be allowed the option of conveying to her immoveable property which she did not want and would not know what to do with if she got it. She says further that she knew nothing whatever about any arrangement for the valuation of the Zemindari share, that she did not agree to its valuation by any chosen arbitrators and that she never agreed to accept whatever sum these arbitrators might choose to fix as the value of this property as equivalent to the sum of Rs. 8,000 which, even on the judgment debtors own showing, would remain due to her under the decree. Incidentally she also says that the Zemindari property has been greatly undervalued at Rs. 2,068.
2. The Court below has dealt with the case in a somewhat peculiar manner. To begin with, it had before it simply an application by the judgment debtors to certify full satisfaction of the decree. It has gone a good deal beyond merely rejecting this application. It has come to a finding that the decree-holder is bound, so far as the execution Court is concerned, by her admission that she had received Rs. 14,000 out of Court, although at the same time it expressed grave doubts whether any such payment had in fact been made. With regard to the rest of the compromise it holds that the decree-holder is in no way bound by it, that she never really assented to its terms and more particularly that she is not bound by the valuation put upon the Zemindari property. At the same time the finding actually arrived at as to the sum due under the decree is based on a certain alternative provision in the terms of the compromise itself. It was therein stated that, if the judgment-debtors failed to pay the balance of Rs. 13,000 in one or other, of the ways provided under the terms of the compromise, then the decree-holder would be entitled to take out execution for a sum, not of Rs. 13,000 but of Rs. 15,000, less any amount which might actually have been paid into Court.
3. It seems to me that this is not a satisfactory way of dealing with the matter. The Court bad before it the application of the judgment-debtors to enter up full satisfaction of the decree. In order to dispose of that application it had to determine, firstly, whether there had been an adjustment of the decree out of Court by which the decree-holder was bound and, secondly, whether under the terms of that adjustment anything remained to be paid to the decree-holder. The learned Subordinate Judge has given very good reasons for holding that Mausammat Rukia Begam has not entered into any compromise or adjustment of this decree binding upon her. A number of facts are apparent on the record which show that the compromise could not have been honestly brought about. Even supposing that a sum of Rs. 14,003 had been paid out of Court, or that Rukia Begam had made up her mind to relinquish her rights under the decree to this extent, there still remained a sum of Rs. 13,000 due to her. This the judgment-debtors claim to have paid off by a payment of Rs. 2,068 and by the conveyance of a certain house. As regards the house, they do not hold a clear title to the same. The share of one of the judgment-debtors has been conveyed by him to his wife and another share has been mortgaged and sold in execution of a mortgage claim. Evidence was offered on the part of the judgment-debtors to the effect that these transactions had not really effected any transfer of their rights in the house and that the vendee of one judgment-debtor and the purchaser at auction of the share of another were ready to relinquish their claims. It is, however, sufficiently obvious that the respondent has not got anything like a reasonably clear title by the conveyance which the appellants have executed in her favour. The valuation of the Zemindari share at Rs. 2,038 is either a gross under valuation, or it is not. If it is, there has been fraud in ore way; and if it is not, there has been fraud in another way, for it is obvious that the deoree-holder could not have consented to accept landed property worth Rs. 2,068 in satisfaction of the balance of a claim amounting to Rs. 8,000. It is idle to suggest that the decree-holder may have desired to deal leniently with her husband's heirs and to relinquish some part of what was due to her. In the absence of evidence that Rs, 14,000 had actually been paid, her acknowledgment in Court of the receipt of this sum would in itself be a relinquishment of more than half of her claim, and there is every reason to believe the statement which she made in the course of this enquiry that, as regards the balance of Rs. 13,000, she not only had no intention of relinquishing it, but believed the assurance which had been given her that this much at any rate would be paid to her, cash down, within a reasonable interval of time. From any point of view it is clear that the Court below was right in holding that the decree had not been fully satisfied and in rejecting the application of the judgment debtors to enter satisfaction in full. On the other hand, I think that the order of the Court below purporting to fix a definite sum of Rs. 12,932 as remaining due to the decree-holder under the decree went beyond what was necessary for the disposal of the matter then before the Court, and should be set aside as not binding on the parties in any future execution proceedings which the decree-holder may be advised to take out. The question whether the decree-holder is entitled to claim execution of the decree to the extent of Rs. 27,000 or only to the extent of Rs. 13,000, is one which can most conveniently be considered on an application for execution. At any rate, this much seems clear that, if the decree-holder is not bound by the terms of the compromise, there is no adequate reason for giving effect to one of its terms as the Court below bas done. As regards the question of the payment of Rs. 14,000 certified in Court, the Court below bas assumed that to this extent the decree-holder is bound by her own act. The question whether the certificate of payment thus obtained from the decree-holder was or was not part of a compromise fraudulently obtained by the judgment debtors is one which ought to be considered when it comes before the Court upon a proper application for execution. There is good authority in this Court, as well us elsewhere, for the proposition that, as between the decree holder and judgment-debtor, the question of an alleged fraudulent adjustment of the decree mutt be gone into and decided by the execution Court, vide Adhar Singh v. Sheo Prasad 24 A. 209 : A.W.N. (1902) 18. Even if there were any technical difficulty about the investigation on the merits of the objections raised by the decree-holder regarding this alleged payment of Rs. 14,000, the Court would have to consider the provisions of Section 47, Clause (2), of the Code of Civil Procedure, and might in any event come to the conclusion that the entire question of this alleged adjustment of the decree required to be determined in one single proceeding. As the evidence at present stands, the decree-holder has asserted that she was induced to make a false statement about this sum of Rs. 14,000 by false representations made to her upon a matter of fact and by promises which were not fulfilled. These allegations rest at present, upon her own statement and in the view which the Court below took of the question of law, it is by no means clear that the judgment-debtors were allowed any adequate opportunity of producing evidence either as to the actual payment out of Court of Rs. 14,000 or as to the circumstances under which a formal admission of payment was obtained from the decree-holder. Nothing in the decision pronounced in this case should be regarded as effecting the rights of the parties on the merits in any enquiry which may arise in future upon a further application for execution by the present respondent. I am of opinion, therefore, that the proper orders for us to pass are, firstly, that we dismiss this appeal with costs including fees on the higher scale; secondly, that we allow the cross-objection to this extent, that we set aside so much of the order of the Court below as purports to determine between the decree holder and the judgment debtors the fact that a sum of Rs. 12,932, neither less nor more, remains capable of realisation under the decree. This decision should be held to determine only this point, that the decree has not been satisfied in full as alleged by the judgment debtors and that the decree-holder is not bound to accept payment of Rs. 13,000 by conveyance of the house or of the Zemindari property referred to in the alleged compromise.
4. I agree. If it were not for one passage in the learned Judge's judgment I should be content merely to agree, but as between these parties, who will inevitably have to fight out this question at some time or another, the learned Judge has gone out of his way to express an opinion not merely of fact but also of procedure which he himself on any future occasion would otherwise necessarily be disposed to follow, or a successor of his might adopt. I think the expression of opinion is so serious and might lead the decree-holder into such serious consequences that the parties have the right to an expression of the Appellate Court's view on that particular matter. The learned Judge was of opinion that if he had to decide the matter he would feel himself compelled to hold that the woman was duped and that no sum of Rs. 14,000 had ever been paid- as mentioned in the compromise. Having expressed this opinion, he went on to say that he could not decide those points. Up to a point we agree with him. The application before him was one by the judgment-debtor. The decree-holder was not asking for execution so as specifically to raise the question of this-alleged part-payment of Rs. 14,000. But the learned Judge went on to say in the clearest possible terms that, being an execution Court, he could not in any case go behind this alleged payment and that the decree holder was bound by it until she brought a suit to get it set aside in a competent Court. With this view I find myself unable to agree. In fact I take the view that I am bound by law to disagree with him whatever my own personal view might be. No doubt there are reported cases where in special circumstances one High Court or another has recognised, in spite of Section 47 (as it now is), the right of a party to bring a suit based upon fraud or misrepresentation in a matter which certainly directly relates to the execution, discharge or satisfaction of the decree. But to my mind the questions such as those discussed in the judgment now under appeal before us cannot be said to be otherwise than questions arising between the parties to the suit relating to the discharge of the decree. Moreover, it seems to me that there is a clear current of authority dating from many years ago and proceeding up to the highest tribunal that that is the correct view. It was first taken in Paranjpe v. Kanade 6 B. 148 : 3 Ind. Dec. (N.S.) 557 in 1882, a case almost on all fours with this case if the decree-holder in this case had applied for execution in spite of the alleged payment of Rs. 14,000, and the Bombay High Court held that a suit in such a matter was barred. The question next arose in connection with a sale in Sakharam Govind Kale v. Damodar Akharam Gujar 9 B. 468 : 5 Ind. Dec. (N.S.) 311 in 1885, and it was held there on the authority of Paranjpe v. Kanade 6 B. 148 : 3 Ind. Dec. (N.S.) 557 that a separate suit would not lie. The Privy Council in Prosunno Kumar Sanyal v. Kali Das Sandal 19 I.A. 166 19 C. 688 : 6 Sar. P.C.J. 209 : 9 Ind. Dec. (N.S.) 9898 in 1892, in a case of a sale in satisfaction of a decree which was alleged to be fraudulent, adopted the view which had up to that date always been taken by the Courts in India, based their decision upon the latter of the two Bombay cases which I have oiled and expressed their satisfaction that the Courts in India had not placed a narrow construction on the language of the section when a question had arisen as to the discharge or satisfaction of a decree between the parties. The principle laid down in that case in a question of sale has been invariably and consistently followed by the other High Courts in India and was expressly followed by a decision binding upon me in the authority to which my brother has already referred Adhar Singh v. Sheo Prasad 24 A. 209 : A.W.N. (1902) 18, so that when the question arises in the case of a sale the matter is beyond controversy. I can see no possible distinction in principle between a question as to the honesty of a sale in satisfaction of a decree, and a question as to the honesty of a compromise in discharge of a decree so far as the applicability of Section 47 is concerned.
5. We dismiss this appeal with costs, including fees on the higher scale, and we allow the cross-objection to this extent that we set aside so much of the order of the Court below as purports to determine between the decree-holder and the judgment-debtors the fact that a sum of Rs. 12,932, neither less nor more remains capable of realisation under the decree. This decision should be held to determine only this point, that the decree has not been satisfied in full as alleged by the judgment-debtors and that the decree-holder is not bound to accept payment of Rs. 13,000 by conveyance of the house or of the Zamindari property referred to in the alleged compromise.