1. This appeal is from the order of the learned Subordinate Judge of Coimbatore in which he dismissed on a preliminary ground the appellant's objection to execution of the decree in O.S. No. 118 of 1931. The appellant was the second defendant in the suit which was filed upon a mortgage, A preliminary decree was passed in the suit on a date of which we have not been made aware and a final decree is said to have followed in due course for the sale of the hypotheca. Neither the preliminary nor the final decree has been produced before us. The appellant objected to execution and he alleged that before even the preliminary decree had been passed in the suit he and the plaintiff had entered into an agreement which was as follows:
The petitioner should not press his defence and allow the matter to proceed ex parte. The first respondent will get a decree for the sum as claimed. After getting a decree the first respondent was to proceed and execute the decree against S. Nos. 391-A, 394, 393-B (excluding the house), 563-A, 547, 548, 393-B and 399 of the hypotheca.
2. It was alleged that the appellant had in accordance with this agreement refrained from pressing his defence and had allowed a decree to be passed ex parte. The appellant said (hat it appeared to him that the plaintiff had also got a final decree but he was not aware of that final decree any more than we ourselves are now. Then, he said that the decree-holder was secretly trying to bring to sale all the survey numbers of the hypotheca in spite of the said agreement and he went on to say that in accordance with this agreement, the decree-holder could execute the decree only against the survey numbers mentioned above in paragraph 4 of his affidavit. The appellant prayed therefore that the Court would order and restrict execution of the decree by the first respondent against S. Nos. 391-A, 394, 393-B (excluding the house) 563-A, 547, 548, 393-B and 399 only and stay proceedings against the other survey numbers in the hypatheca. The learned Subordinate Judge has held that this was an agreement which attacked the decree itself and not a mere agreement relating to the execution or executability of the decree. He therefore held that such an agreement could not be pleaded in bar of execution and accordingly he dismissed the appellant's application with costs. The appellant has preferred this appeal.
3. There are two grounds on which this appeal must fail. The first is that in the agreement which is said to be an oral agreement as set out in paragraph 4 of the appellant's affidavit in the lower Court, it is not expressly stated that the decree-holder agreed to refrain from executing the decree against any particular items of the hypotheca. Moreover, we have not been informed of what the hypotheca consisted and which items in the hypotheca ought according to the appellant to be exempted from execution. But if it is a fact that the hypotheca comprised other items besides the survey numbers mentioned and if the contention of the appellant is that those items that are included in the final decree cannot be sold in execution, then, the conclusion arrived at by the learned Subordinate Judge appears to be clearly correct. The final decree, as we have said, has not been produced but it must be presumed to be a final decree in the form prescribed by the Civil Procedure Code and if so, it must be a decree directing (not that anybody should pay any money but) that certain items of property or a sufficient part thereof shall be sold. When the appellant comes up with the allegation that before even the preliminary decree was passed, he had made an arrangement with the plaintiff that certain items of the hypotheca should not be brought to sale, he is clearly pleading an agreement which attacks the decree itself. Such an agreement under the principle enunciated in the case of Papamma v. Venkayya (193S) 69 M.L.J. 451 : I.L.R. Mad. 994 (F.B.) cannot be pleaded in bar of execution. Learned Counsel for the appellant has brought to our notice the decision reported in Meenakshisundaram v. Swaminatha : AIR1938Mad456 . It is not however possible for us to say that that decision applies to the facts of this case, partly because the facts of the case reported are not clear, partly because that was a case of an agreement after the preliminary decree and before the final decree, whereas our case is one of agreement before the preliminary decree itself, and partly because, as already observed, we have not been put in full possession of the facts even in this case so that it is not possible to make an accurate comparison. The decision of the Full Bench reported in Papamma v. Venkayya (193S) 69 M.L.J. 451 : I.L.R. Mad. 994 (F.B.), is quite clear. It adopts the principle set out in the decision in Butchiah Chetti v. Tayar Rao Naidu (1930) 60 M.L.J. 721 : I.L.R. Mad. 184 wherein Pakenham Walsh, J., showed the guiding principle to be that 'an agreement which does not relate to execution but directly attacks the decree itself cannot be pleaded in execution.' When a final decree in a mortgage suit says that the hypotheca or a sufficient part thereof shall be sold, a person who propounds an agreement that certain items of the hypotheca should not be sold, is clearly attacking that decree and therefore the learned Subordinate Judge was right in holding that such an agreement cannot be pleaded in bar of execution.
4. This appeal is accordingly dismissed with costs of the first respondent.
5. I agree. We are asked to presume that the oral agreement pleaded in precise terms by the appellant contained certain conditions which have not been pleaded. This would result in an agreement different to that--actually set out--an impossible position. With regard to the second point, it is urged that the decree is to be read as containing an order for the sale of some items and not of others, whereas the words of the decree provide for the sale of all. This amounts to an attempt to vary the terms of the decree by an oral agreement and not to an agreement that the decree should not be executed--vide the judgment of the Full Bench in Papamma v. Venkayya : AIR1935Mad860 where the learned Judges expressly say that an agreement not to execute the decree does not vary its terms.