K.T. Koshi, C.J.
1. This Second Appeal arises out of proceedings to execute the decree in O. S. No 352 of 1113 on the file of the Muvattupuzha Munsiff's Court. The decree-holder is the appellant before us and his execution application, dated 10-6-1954 has concurrently been dismissed by the two lower courts namely, the Court of the Munsiff at Muvattupuzha and the Court of the Sub Judge at Parur.
Following the decision of Sankaran, J. (sitting alone) reported in Kuriakko v. Kurian Pylee, 1953 Ker LT 20 : (AIR 1953 Trav-Co. 394), the primary court held the application to be hit by the twelve years' rule enacted in Section 48, Civil Procedure Code.
The learned Munsiff was bound by the authority cited before him and so was the learned Subordinate Judge. Before the court of the latter the decree-holder tried to get over the difficulty by contending for the position that the execution application in question was only one to continue an earlier application filed within twelve years from the date of the passing of the decree.
That attempt was unsuccessful and before us Mr. P. Govindan Nair, appearing for the decree-holder appellant, stated that he was not seeking to sustain the appeal on the ground urged before the learned Subordinate Judge and that his position was that the decision in 1953 Ker LT 20: (AIR 1953 Trav-Co. 394), was erroneous and that two recent decisions of this Court had laid down the true rule applicable to a case of this nature.
On facts more or less similar to those obtaining here, those cases hold that 12 years' period should be counted not from date of the decree sought to be executed, but from any subsequent date the parties might fix for payment as the result of a post-decree agreement and which agreement the execution court accepts. Those oases are Karnakodam Gowda Saraswatha Brahmana Samajam v. Ouseph, 1957 Ker LT 422 : (AIR 1957 Kerala 108) and Karanakodam Gowdasaraswath Brahman Samajam v. Manikka Pai, 1958 Ker LT 1. M.S. Menon, J, (sitting alone) decided the first named case and Raman Nayar, J. (sitting alone) decided the other.
The earlier of these two decisions alone had been passed when this Second Appeal came up for hearing before one of us (Kumara Pillai, J.) on 80-10-1957 and on account of the conflict between that decision and the earlier decision in 1953 Ker LT 20 : (AIR 1953 Trav-Co 394), the case was then and there referred to a Division Bench for disposal. The decision of Raman Nayar, J. mentioned above, was rendered on 12-12-1957.
2. The decree in the present case was passed on 30-9-1938 and it is common ground that E. P, 204 of 1950 filed on 20-6-1950 was within time. That execution petition was however dismissed on 31-10-1950 and as indicated earlier, the decree-holder's learned counsel conceded that it was a proper disposal.
During the pendency of that application the decree-holder and the present respondent, who had got himself impleaded in the execution proceedings as an assignee of the decree schedule properties, had however entered into a compromise arrangement as per C. M. P. No. 10159 dated 15-9-1950 and the court passed an order 'recorded' on it.
On the date of the compromise the respondent paid Rs. 30 to the decree-holder and it was agreed that in case a further payment of Rs. 130 was made on or before 12-2-1951, the decree will be treated as fully satisfied and that in the event of default, the decree-holder, will be entitled to claim the entire balance due as per the terms of the decree.
The subsequent execution petition out of which this 2nd Appeal arises was filed well within six years of the dates fixed for payment under the compromise arrangement and also within six years of the dismissal of the earlier execution petition. The decree in the case is a registeied one and the decree-holder has therefore six years' time from one or the other of the dates specified in Article 182, Limitation Act, to execute the decree. See Padmnabhan v. Ramaswami Pillai, 1958 Ker LT 441: (AIR 1959 Kerala 5). However the application was filed beyond twelve years from the date of the passing of the decree and the question arising for decision is whether the twelve years' period should be calculated from the date of the decree or from the date fixed for payment under the compromise arrangement. If it is the earlier, the application is hit by Section 48, Civil Procedure Code and if it is the latter there is no bar under that section.
3. Our decision in this case must depend upon whether the order the execution court passed on the compromise petition C. M. P. 10159 of 1950 is a 'subsequent order' within the meaning of Section 48(1)(b). Civil Procedure Code. In 1953 Ker LT 20 : (AIR 1953 Trav-Co 394, Sankaran, J., held that the subsequent order contemplated by S. 48(1)(b) is an order by a court which passed the decree and not an order passed by the court executing the decree.
According to the learned Judge an order of the execution court regulating the time and mode of payment of the decree amount, whether it is passed on a compromise entered into between the parties or on the motion of one or the other of them, would not amount to a subsequent order as contemplated by Section 48(1)(b) and such an Older cannot serve as the basis for a fresh starting point of limitation.
The opposite view that the order of an executing court giving effect to the compromise arrangement between the parties as to the mode and time of payment of the decree debt would constitute a subsequent order within the provision of law referred to has been taken in the two later cases cited above.
Among what we might conveniently call the former British Indian High Courts there was a similar conflict of opinion on this question, but that was set at rest by the decision of the Privy Council in Oudh Commercial Bank Ltd. v. Bind Basni Kuer, AIR 1939 PC 80. Except the decision in 1953 Ker LT 20 : (AIR 1953 Trav-Co. 394) we have not been referred to any instance or have we been able to come across any instance ourselves, where after the date of the aforesaid Privy Council decision, of any Indian High Court taking the view that an executing court's order varying the terms of a decree by instalment payments or otherwise will not constitute a subsequent order within the meaning of Section 48(1)(b).
Unfortunately the Privy Council decision or the later decisions of the various Indian High Courts following that decision do not appear to have been brought to the notice of the learned Judge who decided, 1953 Ker LT 20 : (AIR 1953 Trav-Co. 394). The basis of the view taken there is that the function of a court of execution is to execute the decree as it stands and that the terms of a decree if altered by consent of parties cannot be executed but was only capable of being enforced by a fresh original action.
That line of reasoning had no doubt found favour with some learned Judges of the Allahabad, Lahore and Patna High Courts. Sankaran, J. has in his judgment referred to the leading Allahabad decision expounding that view, namely Gobardhan Das v. Dau Dayal, AIR 1932 All 273 (FB). The Bombay and Calcutta High Courts had throughout taken the opposite view. The Allahabad High Court itself has later unequivocally stated that its earlier view stood overruled by the decision in AIR 1939 PC 80. See Bhiki Mal v. Kundan Lal, AIR 1940 AH 107, Mahendra Rao v. Bishambhar Nath, AIR 1940 All 270 (FB) and Chhatra Pati v. Hari Ram, AIR 1940 All 423.
In a decision of the Cochin High Court --Kalikutly v. Krishna Menon, 36 Coch. LR 869 --Krishnaswami Iyengar, C. J., has made a rather detailed survey of the case law bearing on the question, both before and after the Privy Council decision and pointed out that in the later Allahabad cases referred to above that High Court had itself stated that its earlier view expressed in, AIR 1932 All 273 (FB) can no longer be regarded as sound law after the decision in AIR 1939 PC 80.
4. The relevant portion of the head-note of the decision in AIR 1939 PC 80, may conveniently be quoted here--
'The Code contains no general restriction of the parties' liberty of contract with reference to their rights and obligations under the decree. In the absence of express statutory authority it is not possible to regard Order XX, Rule 10 as excluding any possibility of the parties coming to a valid agreement for time to which the Court under Section 47 will have regard. If it appears to the Court, acting under Section 47, that the true effect of the agreement was to discharge the decree forthwith in consideration of certain promises by the debtor, then no doubt the court will not have occasion to enforce the agreement in execution proceedings but will leave the creditor to bring a separate suit upon the contract. If, on the other hand, the agreement is intended to govern the liability of the debtor under the decree and to have effect upon the time or manner of its enforcement, it is a matter to be dealt with under Section 47. In such a case to say that the creditor may perhaps have a separate suit is to misread the Code, which by requiring all such matters to be dealt with in execution disclose a broader view of the scope and functions of an executing Court. A fair and ordinary bargain for time in consideration of a reasonable rate of interest cannot be regarded as in attempt to give jurisdiction to a Court to amend or vary the decree. Such a bargain has its effect upon the parties' rights under the decree and the executing Court under Section 47 has jurisdiction to ascertain its legal effect and to enforce the bargain.'
Mulla's Commentaries to Section 48 of the Code of Civil Procedure has the following instructive comment on this question at page 210 (12th Edition) :
'........According to the Allahabad High Court, the twelve-year period in Section 48 cannot be extended by a compromise in the course of execution proceedings. But as the result of the decision in the case of AIR 1939 PC 80, the Allahabad High Court has held that a compromise between the decree-holder and the judgment-debtor entered into in the course of execution proceedings, if duly recorded, is enforceable in execution proceedings. That is also the view of the Chief Court of Oudh. The High Court of Calcutta has in a later decision held that if parties to a decree already passed come to a compromise and the terms of the compromise are duly recorded by an order of the Court the order is in the nature of a subsequent order made by a competent Court.'
5. In 1957 Ker LT 422 : (AIR 1957 Kerala 108), M.S. Menon, J., has referred to the decision in 30 Coch. LR 869 and Laxmi Lal v. Onkarlal, AIR 1953 Raj 33, as following the Privy Council decision and explaining its meaning and import. In the still later case in 1958 Ker LT I, Raman Nayar, J., has made a fairly exhaustive citation of the case law bearing on the question.
As pointed out by Raman Nayar, J., if an agreement to pay the decree debt in instalments or on a future specified date is a matter to be dealt with under Section 47, Civil Procedure Code, and ' not by a separate suit, it must necessarily follow that the order of the executing court accepting such an agreement must be a subsequent order within the meaning of Section 48(1)(b) of the Civil Procedure Code; otherwise it would result in the anomaly frequently pointed out in decided cases that while the agreement would be a valid defence if the decree-holder were to seek execution in terms of the decree, his failure to do so might bring him within the mischief of Section 48(1)(a).
6. We are therefore definitely of the opinion that the view taken in the two cases of this Court cited earlier following the Privy Council and other decisions referred to in them, is the view that should prevail with us and we accordingly hold that an executing court's order accepting a compromise arrangement entered into between the parties for paying up the decree-debt by instalments or on a future specified date, would constitute a subsequent order within the meaning of Section 48(1)(b). Raman Nayar, J., has pointed out that the view taken in 1953 Ker LT 20 : (AIR 1953 Trav-Co 394) is erroneous and we concur with that expression of opinion,
7. The next question is whether there is such an order in this case. It has already been noticed that an that the execution court did with respect to the compromise ^petition was to pass the order 'recorded' on it. The decision in 1953 Ker LT 20 : (AIR 1953 Trav Co. 394) is also an authority for the position that a mere order of the execution court 'recorded' will not constitute an order as contemplated by the provision in Section 48(1)(b). What Sankaran, J., stated in that case is that there must have been a decision by the court followed by a formal expression of the same.
Mere 'recording' of a compromise does not satisfy this condition and cannot therefore attract the concerned provision in Section 48. M.S. Menon, J., or Raman Nayar, J., had not to deal with such an order. In the cases before them there were express orders of the court sanctioning instalment payments. . We are however of the opinion that the view taken by Sankaran J., is rather too strict or narrow. The effect of the order 'recorded' on the compromise petition is that the court accepts the compromise arrangement and gives its imprimatur to it.
To all intents and purposes the terms of the compromise form part of the court's order. In Jatindra Nath v. Herambha Chandra, AIR 1945 Cal 154 the execution court passed the order 'recorded' on a compromise petition filed by the parties, and a Division Court consisting of Khundkar and Bis-was JJ. gave that order the sense we attribute to the order 'recorded' in this case. At the top of page 155 (column 1) of the report it is seen stated 'this compromise was recorded in the execution proceedings and the execution case was dismissed.' In column 2 of the same page the learned Judges stated :
'Now it is not disputed that the compromise arrived at between the parties was recorded in the execution case, and that the execution case was disposed of on the basis of that compromise. In so far as the compromise contained any operative words, those words, became an order of the executing court, and that being so they would come within the intention of the words 'any subsequent order' contained in Section 48, Sub-section (1), Clause (b). Civil Procedure Code.'
This would suffice for the point we are now dealing with, but what follows may also be usefully quoted as it deals with the question we have already disposed of:
'It was contended in answer to this that 'subsequent order' in this provision cannot mean the order of the executing court, but must apply to orders passed by that court alone which pronounced the decree. This point is clearly concluded by authority. In Kartic Chandra v. Bala Krishna, 176 Ind Cas 212 : (AIR 1938 Cal 25) it was held that an order of the High Court made after an appeal in an execution case had been dismissed, but during the pendency of an application for leave to appear to the Privy Council, was an order within the meaning of the words in Clause (b) of Sub-section (1) of Section 48, Civil Procedure Code. In that case the order of the Court was one which had been passed in terms of a compromise arrived at between the judgment-debtor and the decree-holder, by which it was stipulated that the decretal amount would be paid by instalment, and that the limitation contained in Section 48, Civil Procedure Code, would run from the date of the default of the judgment-debtor to pay any one of the instalments, stipulated.
A different view once found favour with the Allahabad High Court, but the view row taken by that Court seems to be in accordance with the decision just referred to. In ILR (1940) All .536: (AIR 1940 All 423) a compromise had been entered into between a decree-holder and a judgment-debtor in execution proceedings, and it had been stipulated that the decretal amount was to be paid in 8 annual instalments. A default was made in payment of the 5th instalment and the decree-holder made an application for execution, but this application was found to be more than 12 years after the date of the decree. The Court held that the case fell under Clause (b) of Section 48, Sub-section (1), Civil Procedure Code, and the application for execution was not barred by limitation under that section. The appeal accordingly fails and is dismissed with costs.....'
8. In this context it may also be mentioned that in the case in AIR 1939 PC 80 all that the execution court did with respect to the compromise petition was to record the substance of the compromise arrangement in the appropriate register as an adjustment under Order XXI Rule 2, Civil Procedure Code. See column 1 of page 83 of the report and the head-note to the rase at p. 80. Still the Privy Council construed that 'recording' as having the effect of an order of that court.
9. Yet another case where the court treated an order 'recording' passed on a compromise petition filed in execution as having the effect of a court's order embodying the terms of the compromise is the case reported as Kesava Pillai v. Krishnan, 1949 Trav LR 185. There also the question was whether the order of the execution court accepting a compromise permitting instalment payments would amount to a subsequent order within the meaning of Section 48(1)(b). The answer given by the Division Court which decided the case was in the affirmative.
Sankaran, J. brushed aside that case on the ground that a decision of the Travancore High Court though by a Division Bench was not binding on him sitting in the Travancore-Cochin High Court: We are in a far advantageous position in that we sit as a Division Court in the Kerala High Court. The body of the judgment in (1949) Trav LR 185 shows that the only order the execution court passed on the compromise petition was one 'recording' it.
10. The respondent's contention that even if a proper order by an execution court would fall within the purview of Section 48(1)(b), the particular order in question does not satisfy the requirements of the section is therefore repelled. We construe and understand the order 'recorded' passed by the execution court on the compromise petition in the case on hand in the sense indicated above. The second appeal must in the result succeed.
11. Before parting with this case we think it proper to point out that in our opinion had the Privy Council decision in AIR 1939 PC 80 and the decisions of the Indian High Courts following that case been brought to the notice of Sankaran, J., he would in all probability have followed those decisions and not differed from 1949 Trav LR 185, particularly when the Allahabad case which he followed had been differed by the Allahabad High Court itself in subsequent decisions.
This reminds us of what Lord Birkenhead, L. C., said in Globe Sugar Refining Co. Ltd. v. Trustees of the Port and Harbours of Greenock, 1921 WN Part 1, p. 85 that it was an obligation of confidence between Judge and opposing counsel that the latter should furnish the Judge with all legal information for and against either party. During the course of the judgment in that case the noble Lord said:
'A similar matter arose in this House some years ago, and it was pointed out by the then presiding Judge that the withholding from their Lordships of any authority which might throw light upon the matters under debate was really to obtain a decision from their Lordships in the absence of the material and information which a properly informed decision required; it was, in effect, to convert this House into a debating assembly upon legal matters, and to obtain a decision founded upon imperfect knowledge. The extreme impropriety of such a course could not be made too plain.'
It may also be noted here that it does not appear that the decision in 1953 Ker LT 20 : (AIR 1953 Trav-Co 394) was brought to the notice of M.S. Menon, J., in 1957 Ker LT 422: (AIR 1957 Kerala 108). As a succession of such omissions has come to our notice in this case itself we thought it worthwhile to quote here the high authority of Lord Birkenhead, L. C., to show how such omissions are viewed elsewhere.'
12. To come back to the case on hand, weallow the Second Appeal and remit the execution case to the court of execution to be proceeded with according to law. If the respondent hasany other objection to the execution that must beheard and pronounced upon. In the circumstancesof the case parties will bear the respective costsincurred by them in this execution proceeding inall the three courts.