Pandrang Row, J.
1. This is an appeal from the order of the Additional Subordinate Judge, Cocanada, dated 8th October, 1930, dismissing a petition for executing the decree in O. Section No. 61 of 1920 on the file of the Sub-Court, Cocanada, as against the first judgment-debtor. The petitioner is the son and legal representative of the deceased second decree-holder and he applied to execute the decree for the benefit of the first decree-holder who did not join in the application. The decree sought to be executed was dated 28th September, 1922, and the application was made on 12th October, 1928 for realising the mesne profits and costs awarded by the decree by arresting the first judgment-debtor and by attaching his properties as well as those of some other judgment-debtors. The application was resisted by the first judgment-debtor alone, and on two main grounds, namely, that there was an oral agreement between him and the petitioner in his capacity as agent of the two plaintiffs in the suit sometime after he had filed his written statement in the suit and before the passing of the decree to the effect the plaintiffs would not execute any decree that might be passed against him in the suit provided he did not contest the suit, and that the claim to execute the decree against him is barred by limitation. The additional Sub-Judge found that while the claim was not barred by limitation, the oral agreement relied upon by the first judgment-debtor was true and could be successfully pleaded in bar of execution. The appeal of the petitioner in execution is directed against the latter finding about the oral agreement.
2. Three contentions are raised by the appellant in this appeal, namely, (1) evidence of the oral agreement is excluded by Section 92 of the Indian Evidence Act,
(2) the oral agreement cannot be pleaded in bar of execution in the Court executing the decree, and
(3) the alleged oral agreement is not true.
3. In order to succeed in his first contention the appellant has to establish two propositions, namely, that decrees come within the purview of Section 92 of the Indian Evidence Act, and that evidence of the oral agreement pleaded in this case is tendered for the purpose of contradicting, varying, adding to, or subtracting from the terms of the decree sought to be executed. The first of these propositions raises a question of law regarding which there is a conflict of opinion which is well-nigh irreconcilable. According to one view a decree is a 'matter required by law to be reduced to the form of a document', the parties shown in the cause title of the decree being parties to the instrument, and therefore comes within the purview of Section 92 of the Indian Evidence Act. This view was taken in Rajah of Kalahasti v. Venkatadri Rao : AIR1927Mad911 following an earlier unreported decision by Napier and Krishnan, JJ., in S.A. No. 62 of 1920, and dissenting from the contrary view taken by the Calcutta High Court in Debendra Narain Sinha v. Sourindra Mohan Sinha (1914) 24 I.C. 391 and in Ananda Priya v. Bijoy Krishna A.I.R. 1926 Cal. 643. The bench decision in Rajah of Kalahasti v. Venkatadri Rao : AIR1927Mad911 was followed by a single Judge in Gopala Krishna Aiyar v. Sankara Aiyar : AIR1930Mad673 . The same view had been expressed obiter by one of the two Judges of the Allahabad High Court who decided Lachman Das v. Baba Ramnath Kalikamliwala I.L.R.(1921) 44 All. 258 but it was dissented from by the learned Chief Justice of the same Court in a subsequent case, Ganga Dihal Rai v. Ram Oudh : AIR1929All79 and also by a single Judge of the Rangoon High Court in Ma Shwe Pee v. Maung San Myo I.L.R.(1928) 6 Rang. 573. The latest case is Abdul Karim v. Hakam Maltani Mal I.L.R.(1933) 14 Lah. 668 in which a single Judge agreed with the ruling in Hotchand Tolaram v. Premchand A.I.R. 1931 Sind. 42 to the effect that an oral agreement between parties to a decree varying the terms of the decree can be proved and that the proof thereof is not barred by Section 92 of the Evidence Act.
4. Debendra Narain Sinha v. Sourindra Mohan Sinha (1914) 24 I.C. 391 and the unreported case decided by Napier and Krishnan, JJ., (S.A. No. 62 of 1920) may be taken as representing the two contrary views, as the remaining cases more or less follow the one or the other of these two. In the former case it was held that the words 'any matter required by law to be reduced to the form of a document' found in the earlier part of Section 92 of the Indian Evidence Act are controlled by the words 'as between the parties to any such instrument or their representatives in interest' in its later part which are applicable only in the case of documents of a dispositive character, and that the former words have therefore a narrower scope in Section 92 than in the preceding section, and cannot cover the case of a decree; reliance was also placed on the omission of these words from the fourth proviso to S 92. Napier, J., was of opinion that:
the result of this decision is certainly startling, for it comes to this: that, where a decree has been given, it would be open to one of the parties to come into Court with a fresh suit the next day saying that directly after the decree was passed the parties made an agreement to vary its terms.
5. It does not appear, however, that this result would follow from the decision; the criticism fails to take note of the provisions of Section 47, Civil Procedure Code and of Order 21, Rule 2, Civil Procedure Code. Napier, J., was further of opinion that a decree was an instrument between the parties to the suit in which the decree was passed, and Krishnan, J., concurred in this opinion, and did not think that the words 'between the parties' necessarily imply that the document should be executed by one of the parties. This second line of cirticism appears to ignore the real nature of a decree and the part which the Court plays in bringing a decree into existence.
6. The correct method of approaching this question is to consider first the real nature of a decree. Apart from the definition of 'decree' in Section 2(2) of the Code of Civil Procedure, in all systems of jurisprudence this word or its equivalent means an adjudication by a Court of the rights of the parties litigating before it; it is not an act of the parties but an act of the Court, and derives its binding force or validity from the authority of the Court and not from any agreement or contract between the parties. A decree is not a creature of consensus but of the Court. Only a Court can bring it into existence, and only a Court can vary or nullify it. Even when the parties to a suit compromise the suit the agreement or compromise does not become a decree until the Court directs the passing of a decree in the terms of the compromise. Even where parties adjust a decree an order of the Court is necessary to give effect to the adjustment; without such an order the adjustment by the parties leaves the decree as it is. A decree or its terms cannot be varied or modified except by the Court; it is a matter of procedure and not of rules of evidence. The parties cannot by their agreement alone vary or modify the terms of the decree, whether the agreement be oral or written.
7. The rule enacted by Section 92 of the Indian Evidence Act is a rule excluding evidence of oral agreement varying the terms of certain documents, and it implies that but for such exclusion the agreement could in law vary the terms. Where no such variation is possible in law by agreement, whether written or oral, the rule of exclusion of evidence of oral agreement cannot apply, and this is the case with a decree. The law does not contemplate the possibility of varying decrees of Court by mere agreement between the parties thereto; the mischief against which Section 92 of the Indian Evidence Act is directed could never affect decrees. Attempts to vary the terms of decrees are guarded against not by any rule of evidence but by rules of procedure, such as those relating to amendment of decrees, appeal, review and execution of decrees. To construe Section 92 of the Indian Evidence Act so as to include decrees within its purview is to construe things clean from the purpose of the things themselves.
8. The second proposition covered by the first contention of the appellant has also not been established in the present case. The first judgment-debtor does not seek to vary the terms of the decree; it is not his case that the terms of the decree were varied by the oral agreement, but that it was agreed that the decree against him should not be executed. An agreement not to execute a decree does not vary its terms, and in the present case the agreement pleaded is not one to which all the parties to the decree are parties but only some of them, as the other defendants are not parties to it. Section 92 of the Indian Evidence Act does not apply to an agreement of this kind see Goseti Subbarao v. Varigonda Narasimham I.L.R.(1903) 27 Mad. 368 : 1903 14 M.L.J. 218 and Sri Sailam v. Bhushayya (1924) 48 M.L.J. 280. The first contention of the appellant therefore fails.
9. The next question is whether the oral agreement can be pleaded in bar of execution. The oral agreement is one subsequent to the filing of the suit and prior to the passing of the decree, and according to the Full Bench decision in Chidambaram Chettiar v. Krishna Vathiyar (1916) I.L.R. 40 Mad. 233 : 1916 32 M.L.J. 13 (F.B.) such an agreement can be pleaded in execution. That decision was itself based on previous decisions to the same effect. Abdur Rahim, O.C.J, refers at p. 237 to the fact that 'by along 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', and at p. 238 to 'the practice which has so long obtained in this Presidency'. Seshagiri Aiyar, J. bases his opinion expressly on the practice in this Presidency; he observes at p. 240 that he would have hesitated a great deal before allowing agreements of this kind to be raised in execution if the matter were res integra. Phillips, J., who dissented from the majority view was of opinion that the case was one to which 'the principle of stare decisis need not be strictly applied'. The decisions of other High Courts on this point were considered by the Full Bench, viz., Laldas v. Kishordas I.L.R.(1896) 22 Bom. 463 (F.B.) and Gauri Singh v. Gajadhar Das (1909) 6 A.L.J. 403 which adopted the same view as that of the majority of the Full Bench, and the Calcutta cases, Benode Lal Pakrashi v. Brajendra Kumar Saha I.L.R.(1902) 29 Cal. 810, Hassan Ali v. Gauzi Ali Mir I.L.R.(1903) 31 Cal. 179 and Chhoti Narain Singh v. Musstt. Rameshwar Koer 6 C.W.N. 796 which took a different view, and it is therefore unnecessary to consider them in detail. The Madras decisions subsequent to the Full Bench case, Chidambaram Chettiar v. Krishna Vathiyar I.L.R.(1916) 40 Mad. 233 : 32 M.L.J. 13 (F.B.) do not disclose any real departure from the rule laid down by the Full Bench. The case-law has been so exhaustively reviewed by a Bench of this Court in a recent case, Butchiah Chetti v. Tayar Rao Naidu I.L.R.(1930) 54 Mad. 184 : 60 M.L.J. 721 that it is unnecessary to go through it again. The conclusion arrived at was tersely stated by Pakenham Walsh, J., who pronounced the judgment of the Bench as follows, at p. 196; 'On a review of the authorities it appears to us that the Full Bench case, Chidambaram Chettiar v. Krishna Vathiyar I.L.R.(1916) 40 Mad. 233 : 1916 32 M.L.J. 13 only covers agreements which relate to execution, and not to agreements which attack the decree itself'. This view which reconciles almost all, if not all, the Madras decisions on the subject, is one with which I venture to express my entire concurrence. The agreement pleaded in the present case is one which relates to execution alone, and does mot attack the decree itself,-for it is merely an agreement not to execute the decree as against the 1st judgment-debtor, and nothing more. It follows therefore that the agreement can be pleaded in execution, and that the executing Court can determine whether the agreement is true.
10. The only question which remains is whether the agreement is true. The learned Subordinate Judge was of opinion that it is true, and in a simple question of fact like this, the determination of which depends on a correct appreciation of oral evidence, the finding of the trial Judge is prima facie entitled to great weight. Nothing has been said on this part of this case which gives any room for doubting the correctness of the finding of the learned trial Judge. The 1st judgment-debtor, who is an advocate of 29 years' standing, has given evidence in support of his case, and his evidence was unshaken in cross-examination. His evidence is corroborated by his clerk, and also by the vakil who appeared for him in the suit. The oral evidence is fully supported by the admitted facts of the case, vis., that the 1st judgment-debtor who had filed a written statement of defence and engaged a vakil in the suit gave up his contest at the end, that is, after the agreement, and even gave evidence on behalf of the plaintiffs at the trial, and that in the previous three execution petitions there was no prayer to execute the decree as against the 1st judgment-debtor. There is no plausible explanation of these important facts given by the appellant decree-holder. The learned trial Judge very rightly relied upon these undoubted facts in assessing the value of the oral evidence on the point. Whether looked at in the light of the evidence in the case or in the light of the probabilities of the case the question can be answered in only one way, and that is the way in which it was answered by the trial Judge. The question really admits of no doubt, and the finding of the learned Judge in the Court below is obviously right.
11. It follows from what has been said above that this appeal must fail. It is accordingly dismissed with costs of the 1st Respondent. Vakils' fee is fixed at Rs. 100 under Rule 46 of App. III of the Appellate Side Rules.