Abdur Rahim, Officiating C.J.
1. I would answer the question referred to the Full Bench in the affirmative. Order XXI, Rule 2 which, speaks of a decree being adjusted in whole or in part assumes the existence, of the decree at the time of adjustment. But it has no application to cases in which the alleged adjustment was by virtue of an agreement entered into between the parties before the passing of the decree. See Rama Ayyan v. Sreenivasa Pattar I.L.R. (1895) M. 230. Then it is said that it is the duty of the executing Court to enforce the decree as it stands and it has no power to stay proceedings in execution because of an agreement made while the suit was still pending and in contemplation of a decree being passed in favour of the plaintiff. Order XX Rule 11 says that after a decree for money-which is the nature of the decree in this case - has been made, the Court can postpone payment of the amount decreed only with the consent of the decree-holder. But the Court here referred to is apparently the Court which passed the decree, and this section does not seem to define the powers of the executing Court. The powers of the Court executing a decree are laid down in Section 47, the terms of which are extremely wide. It says 'all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.' By a long course of decisions in this Presidency it has been held that an agreement made before the passing of the decree, by which the decree was not to be executed for a certain time, is a matter to be enquired into and decided by the executing Court. See Rama Ayyan v. Sreenivasa Pattar I.L.R. (1895) M. 230, Rukmani Ammal v. Krishnamachary (1903) 9 M.L.T. 464, Krishnamachariar v. Rukmani Ammal (1904) 15 M.L.J. 370, Subramania Pillai v. Kumaravelu Ambalam (1915) 83 I.C. 66,. A similar view was adopted in Bombay and in Allahabad. See Laldas v. Kishordas I.L.R. (1896) B. 463 and Gauri Singh v. Gajadhar Das (1909) 6 A.L.J. 403,. But in the Calcutta High Court a different view has prevailed. See Benode Lal Pakrashi v. Brajendra Kumar Saha I.L.R. (1902) C. 810, Hassan Ali v. Gauzi Ali Mir I.L.R. (1903) C. 179, Chhoti Narain Singh v. Musstt. Rameshwar Koer (1902) 6 C.W.N. 796. I am unable to hold that the very comprehensive terms of Section 47 do not include questions like the one raised before us. I may mention that the language of Section 244 of the Code of 1882, with reference to which the case in Rama Ayyan v. Sreenivasa Pattar I.L.R. (1896) B. 463, which has teen always followed in this Presidency was decided, was not perhaps as comprehensive as that of Section 47. No doubt Section 244 of the Code 1882 specifically 'stay of execution' as a question to be decided by the Court executing the decree, but the scheme of the correspondence Section 47 of the present Code is not to specify any particular questions at all but to include all questions relating to the execution, discharge or satisfaction of a decree as being within its scope. There is undoubtedly a great deal to be said in favour of the view taken in Calcutta and perhaps it would, in some cases, be embarassing to the executing Court to enquire into agreements made before the passing of a decree and modifying its operation. On the other hand, the Court executing the decrees has been by Section 47 given such large Court powers that it is in quite as good a position as any other Court to decide upon controversies of this character. I do not think we should be justified in saying, as held in Calcutta, that under Section 47 questions relating to execution are necessarily confined to those arising subsequent to the decree and thus upsetting the practice which has so long obtained in this Presidency.
Seshagiri Aiyar, J.
1. I do not propose to say much in this case. What has mainly influenced me in answering the question n the affirmative is the fact that for over 20 years this Court has acted on the principle that agreements like the one in question can be pleaded in execution proceedings. Rama Ayyan v Sreenivasa Pattar I.L.R. (1895) M. 230 was not disputed for a long time. It was followed Rukmani Ammal v. Krishnamachary (1909) 9 M.L.T. 464, in Knshnamachariar v. Rukmani Ammal (1904) 15 M.L.J. 370 and in Subbramania Pillai v. Kumaravelu Ambalam (1915) 33 I.C. 66. In Bombay such agreements are dealt with by the Court executing the decree, Laldas v. Kishoredas I.L.R. (1896) B. 463 . So also in Allahabad, Gauri Singh v. Gajadhar Das I.L.R. (1879) C. 27, Allahabad Law Journal 403 (three out of the four judges held that the agreement should be enquired into by the executing Court). It is true that the view of the Calcutta Judges has been uniformly and consistently against this position, Sheo Golam Lall v. Beni Prasad I.L.R. (1879) C. 27, Thakoor Dyal Singh v. Sarju Pershad Misser I.L.R. (1892) C. 72 and Durga Prasad Banerjee v. Lalit Mohan Singh Roy I.L.R. (1897) C. 96. In this state of the law, I do not think it desirable or proper, that we should upset a practice which has been prevalent for a long period of time in this Presidency. I have always held that in matters of procedure, the principal of consistency will conduce to justice more than a strict adherence to logic. What, after all, is the change advocated? It is that the validity of the agreement should be separately litigated upon, and should not be enquired into in execution. This means further litigation and expense to the parties. I am therefore against overruling the long course of practice in the Presidency and the decisions commencing with Rama Ayyan v. Sreenivasa Pattar I.L.R. (1895) M. 230. On a question of substantive law, the existence of a course of decisions may not be as effective an answer as in the case of processual law. In the latter class of cases, litigants should be enabled to rely upon a settled practice.
2. I, therefore, do not propose to examine the case law on the question at any length. The agreement in question is not an adjustment within the meaning of Order XXI, Rule 2. The adjustment presupposes an existing decree, Lodd Govindass v. Ramdoss (1915) M.W.N. 225, Ponnusami Nadar v. Letchmanan Chettiar I.L.R. (1911) M. 659, and Fateh Muhammad v. Gopal Das I.L.R. (1885) A. 424 Therefore, the agreement is not obnoxious to Order XXI, Rule 2.
3. Nor is the executing Court debarred from enquiring into it by virtue of the language of Section 47. The decision in Sakharam Ramchandra v. Govind Vaman (1873) 10 B.H.C.R. 361, was passed with reference to the language of the Code of 1861 which in material points is different from that of the present Code.
4. The real difficulty arises, as pointed out by the learned Officiating Chief Justice in the course of the argument, with reference to Order XX; Rule 11. Under Sub-clause (2) of that rule, the postponement of execution shall be made only on the consent of the parties. I am convinced that this consent must be subsisting at the time the executing Court is asked to pass the order; but it is open to argument whether the clause lays down that without that consent the Court has no jurisdiction to stay execution for a time. I agree that it is of the essence of the rights under a decree that a decree-holder should have prompt execution, and that the Court should have no option to put him off against his will. It may be that the effect of postponing execution will be virtually to vary the terms of the decree. These are weighty considerations in favour of the view that an agreement prior to decree which the decree-holder refuses to stand by should not, be enquired into in execution, however reprehensible the conduct of the decree-holder may be in resiling from his position. If his matter were res integra, I would have hesitated a great deal before allowing such a course to be adopted in execution; but as I said before, no question of the substantial violation of rights is involved in holding that the question should be litigated in execution rather than by a separate suit; and as the practice has been otherwise in this Presidency, I. would answer the reference in the affirmative.
1. The agreement of 16th July 1914 referred to in the question of reference runs as follows:
That the defendant should remain ex parte without pressing the defence, that the plaintiff should obtain a decree for the full amount, that this defendant should deposit Bs. 2,500 in the South India Bank, Tinnevelly, on or before 15th October 1914, that the plaintiff should assign the decree to this defendant or his nominee and after executing the assignment deed should recover the money from the Bank, and that the plaintiff should not transfer or execute the decree till then.
It is an agreement entered into before the decree was obtained and the question for consideration is whether it can be pleaded in proceedings taken in execution of that decree.
The first point that has to be decided is whether the agreement amounts to an adjustment of the decree within the meaning of Order 21, Rule 2, for, if it is, it cannot be pleaded as it has not been certified to Court. I think, however that the agreement does not come within the provisions of Order 21, Rule 2, for at the time it was made no decree was in existence nor could the parties be certain that any decree would be passed in the suit. The decree was not therefore adjusted by the agreement, which at most was an agreement to adjust the decree in the future.
The next point for determination is whether such an agreement can be pleaded in execution proceedings. The question has been answered in the affirmative by the Bombay High Court in Laldas v. Kishordas I.L.R. (1896) B. 463, and in the negative by the Calcutta High Court in Chhoti Narain Singh v. Musstt. Rameshwar Koer (1902) 6 C.W.N. 796, Hassan Ali v. Gauzi Ali Mir I.L.R. (1903) C. 179, and Benode Lal Pakrashi v. Brajendra Kumar Saha I.L.R. (1902) C. 810 and in this Court the views are conflicting (Rukmani Ammal v. Krishnamachary (1909) 9 M.L.T. 464, and Lodd Govindass v. Ramdoss (1915) M.W.N. 225. The case reported in Rama Ayyan v. Sreenivasa Pattar I.L.R. (1895) M. 230 relates to an agreement after decree, and in Krishnamachariar v. Rukmani Ammal (1904) 15 M.L.J. 370 the question of whether an agreement, before decree can be pleaded in execution proceedings is not discussed.) In Laldas v. Kishordas I.L.R. (1896) B. 463 the cases in Chenvirappa v. Puttappa I.L.R. (18887) B. 708 and Mukund Harshet v. Haridas Khemji I.L.R. (1892) B. 23 were dissented from and Ranade, J. gave as one of the reasons for disagreeing with West J's decision in Ghenvirappa v. Puttappa I.L.R. (1887) B. 708 that Section 244 of the Civil Procedure Code had been since amended by the addition of the words 'and stay of execution' and that the addition had not been brought to Sir C. Sargent's notice in Mukund Harshet v. Haridas Khemji I.L.R. (1892) B. 23. These words are now omitted in the Code of 1908. It is very doubtful whether a question relating to the stay of execution of a decree can be a question relating to its execution and although in Subramania Pillai v. Kumaravelu Ambalam (1915) 38 I.C. 66 a bench of this Court has held that the omission of the words from Section 47, has no effect, because they were mere surplus ages in the old Section 244, I must with all deference differ, for the words were added to Section 244 by an amendment to the Code of 1882 passed in 1888. When therefore the words were added the legislature deemed them to be of importance, and not mere surplus age. Their omission therefore from Act V of 1908 must have been deliberate, and consequently I think importance should be attached to it. However that may be, I think the matter can also be decided on another ground. The agreement sought to be pleaded could have been brought to the notice of the Court which passed the decree, and the Court might have been asked to pass a decree in accordance with its terms. The defendant allowed a decree to be passed, and, now that execution is sought, wants to go behind the decree and substitute another arrangement in its place. This does not appear to me to be a question which can be gone into by the Court executing the decree, for it impeaches the validity of the decree, It is a well settled principle for which no authority is now required that a decree must be executed as it stands, and the executing Court cannot go behind the terms of the decree. The legislature has enacted certain provisions which enable the Courts to recognise agreements between the parties after the decree has been passed, for instance, adjustments under Order 21, Rule 2, postponement of payment or payment by instalments under Order 20, Rule 11 (2), but in order that these modifications may be enforced certain special procedure is prescribed. Again a Court has no inherent power to stay execution of a decree, and the various circumstances in which stay can be granted are duly set forth in the Civil Procedure Code. None of those circumstances exists in the present case. Otherwise under Order 21, Rule 17(4), a Court shall execute a decree upon application, provided certain rules have been complied with by the applicant. For this reason there is ground for holding that the words ' and stay of execution' have been deliberately omitted by the legislature with a view to excluding questions relating exclusively to stay of execution from the jurisdiction of the executing Court. A further ground for excluding an agreement like the present from consideration in execution proceedings is that the conduct of the parties amounts to an abuse of process of the Court for they have collusively induced the Court to pass a decree, which according to their agreement was never to have effect.
This seems to be a case in which the principle of stare decisis need not be too strictly applied, for it relates only to a question of procedure, and an alteration in procedure will not materially affect existing rights for the rights are not taken away, but the method of enforcing them is changed. Practically all the cases in which the plea was allowed in execution were decided under the Code of 1882, and now that that Code has been altered by the legislature, there appears to be no reason why, if the proper interpretation of the statute necessitates an alteration in procedure, effect should not be given to such interpretation.
I would therefore answer the question referred in the negative.
2. By the Court: - The answer to the question referred to us will be in the affirmative.