1. The question in this appeal is whether a predecretal agreement made subsequent to the suit could be pleaded in bar of execution. There are two Full Bench decisions of this Court, Chidambaram Chettiar v. Krishna Vathiar, ILR 40 Mad 233 = (AIR 1918 Mad 1174) (FB) and Papamma v. Venkayya, ILR 58 Mad 994 = (AIR 1935 Mad 860) (FB), which bear on the question. In the earlier case the parties to the appeals in this court entered into an agreement with the appellant, who submitted to a decree in a suit by the respondent then pending against him, that the former should make an arrangement for satisfaction of such decree within a fixed date, and that the latter should not, before that date, execute or transfer it. The court by a majority opinion held that the agreement could be pleaded in proceedings taken in execution of decree. Apparently, this decision was understood in subsequent decisions as limited to the proposition that a predecretal agreement could be pleaded only if it related to the mode of execution. But ILR 58 Mad 994 = (AIR 1935 Mad 860) (FB), made it clear that a predecretal agreement not to execute the decree was not in attack of the decree, nor did it very the terms of the decree, so that, as the predecretal agreement related purely to execution of the decree, it could be pleaded. On facts in that case, there was a predecretal agreement between the decreeholder and one of the defendants alone that the decree against him should not be executed. The agreement was allowed to be pleaded in bar of the execution against him. The court referred to the observation of Pakenham Walsh, J., in Butchiah Cheti v. Tayar Rao Naidu, ILR 54 Mad 184 = (AIR 1931 Mad 399), that Chidambaram Chettiar v. Krishna Vathiyar, ILR 40 Mad 233 = (AIR 1918 Mad 1174) (FB) covered agreements which related to execution and not to agreement which attacked the decree itself, and held:
"This view which reconciles almost all, if not all, the Madras decisions on the subject, is one in which I venture to express my entire concurrence. The agreement pleaded in the present case is one which relates to execution alone, and does not attack the decree itself, for it is merely an agreement not to execute the decree as against the first judgment-debtor, and nothing more. It follow therefore that the agreement can be pleaded in execution, and that the executing court can determine whether the agreement is true".
Mullah, in his Civil Procedure Code, Volume I, 13th Edn., refers to ILR 58 Mad 994 = (AIR 1935 Mad 860) (FB) as laying down the proposition that "a distinction should be made between an agreement which related to the mode of execution or satisfaction of a decree and one which had the effect of rendering the decree nugatory and inexecutable in whole or in part and that, while the former may be pleaded in execution, the latter could not be". But this is not to say that a predecretal agreement was held by Papamma v. Venkayya, 58 Mad 994 as one in attack of the decree or as one which by itself rendered the decree nullity or nugatory. A predecretal agreement not to execute a decree presupposes a decree which is valid and in full force as well as executable. Such an agreement does not, in any way, vary the terms of affect its validity or deny its existence. There may be cases where a predecretal agreement possibly involves a fraud practised on court, on the basis of which it is made to pass a decree. We are not concerned in the instant case with such cases. Here, the agreement, made subsequent to the suit and prior to the decree, was merely an understanding that the decree passed should not be executed. That recognises that such an agreement can well be pleaded, as it relates to execution of the decree and is within the purview of Section 47, C.P. Code.
2. We are aware that in ILR 58 Mad 994 = (AIR 1935 Mad 860) (FB) predecretal agreement was between the decree-holder and one of the defendants. But that, on principle could make no difference to the view we have taken.
3. Some question has been raised as to the factum of the predecretal agreement. But the finding, in our view, is well-founded.
4. The appeal is dismissed with costs.
5. Appeal dismissed.