1. In this case the 1st defendant appeals against the order of the lower Court Sectioning the proclamation of sale, fixing the upset price and the date of sale. The appeal is on the ground executed against the 1st defendant. The lower Court's reasons for rejecting this contention are not clear; but it appears to have rejected it with reference to Order 21, Rule 2 of the Code of Civil Procedure. In fact the agreement was made after the date of the decree of the Court of first instance, but before the date of the appellate decree of this Court, that appellate decree being one dismissing the appeal as the matter had been settled out of Court.
2. It is urged with reference to Chidambaram Chettiar v. Krishna Fathiyar I.L.R. (1917) Mad. 233 that the 1st defendant should have been allowed to prove the agreement. The terms of the agreement are that, of the decree amount of Rs. 36,000, only Rs. 33,750 shall be recovered, the recovery to be made as regards half of that sum from the 2nd defendant and half from the 3rd defendant within specified periods. In case of default at the end of those periods the decree is to be executable, against at least those two defendants. For it is said (though this is disputed) that it is another term of the agreement that there is to be no recovery from the 1st and 4th defendants. It is not necessary to settle that dispute, because the question is whether the agreement can be proved at all. We think that it resembles the agreement dealt with in Arumugham Pillai v. Krishnaswami Naidu I.L.R. (1920) Mad. 725 and not that dealt with in Chidambaram Chettiar v. Krishna Vathiyar I.L.R. (1917) Mad. 233. It no doubt contains a provision for postponing the liability, and it also contains a provision this is its main provision--for the relinquishment of the right to recover Rs. 2,250 odd out of the decree amount. It has been suggested that Arumugham Pillai v. Krishnaswami Naidu I.L.R. (1920) Mad. 725 was wrongly decided and that we should refer the case before us to a Full Bench with reference to an alleged conflict between those decisions. We do not think that there is any sufficient reason for distinguishing the present case' from Arumugam Paillai v. Krishnaswami Naidu I.L.R. (1920) Mad. 725 or doubting the corrections of that decision. In fact, if necessary we should have been prepared to consider the propriety of making a reference in respect making a reference in respect of Chidambaram Chettiar v. Krishna Vathiyar I.L.R. (1917) Mad. 233. We may, before parting with this portion of the case, observe that there is no question of the application of Order 21 Rule 2 as the lower Court appears to have supposed, order 21 Rule 2 as the lower Court appears to have supposed, because that rule relates to adjustment subsequent to the decree and Ex A was before the decree to be executed, that passed in appeal; and the ground, on which the agreement is useless to the 1st defendant in these proceedings is that it was superseded by the decree of the appellate Court, made after it.
3. Taking this view, we turn to the other contentions, which have been relied on, that the agreement can be regarded by an effort of construction as in fact an agreement made subsequently to the decree, since it had in fact been certified to the executing Court under Order 21, Rule 2. We are unable to understand how an agreement made on one date can be regarded as having been made on another or how there has been any certification, such as would be necessary to support the argument. Reliance has been placed on Birod Gorain v. Mussammat Jaimurat Koer 16 Cal.W.N. 923. But we are unable to follow the course of that decision and can only suppose that it was justified by the apparently exceptional circumstances of the case dealt with In it. We further cannot understand how, even if this agreement could be treated as made after the decree, there has been anything resembling a certification of it. The mere fact that payments are mentioned in the execution application as having been made consistently with it is certainly not a certification.
4. The appeal failing on this ground also, there remains only an objection to the figure, which the lower Court fixed as the upset price at which the sale was to be held. Sivagami Achi v. Subramania Aiyar I.L.Rule 27 Mad. 259 and Ramanathan Chetty v. Somasundaram Chettiar (1917) M.W.N. 141 negative the right of a party to execution proceedings to raise any such question by appeal at this stage.
5. The result is that the appeal against order fails and is dismissed with costs of the legal representatives of 1st plaintiff.
6. The memorandum of objections are not pressed and are dismissed. There will be no order as to costs in them.