Krishnaswami Ayyangar, J.
1. The 2nd defendant is the appellant. His father who was the 1st defendant in the suit had executed a mortgage in favour of the respondent for Rs. 4,000 on 28th February, 1930. He died pending the suit and before the preliminary decree was passed. The preliminary decree was passed on 9th February, 1934. It was followed by a final decree, dated 22nd September, 1936. The respondent then sought to execute the decree by filing E.P. No. 4 of 1940 on the file of the Court below. The appellant pleaded an agreement, dated 24th August, 1931, in bar of execution. The question is whether the agreement can be allowed to be pleaded so as to prevent the decree from being executed.
2. The agreement recites that the adoptive father of the appellant (1st defendant) had become a gambler and had been utilising his properties for illegal purposes and consequently there was disagreement between the father and the son. It then states that for the purposes of safeguarding the property and bringing about harmony between them, the father executed in favour of the respondent the suit mortgage for Rs. 4,000 besides two promissory notes. The agreement then states that the suit mortgage had been executed benami and the respondent had paid no money therefor. Then follow the following sentences:
Within a period of twelve years from, the date of this deed of simple mortgage, if your adoptive father would turn favourable to you and allow the entire property to pass on to you without any disputes whatever, I shall return to you the benami deed of mortgage duly cancelled so that there might not arise any disputes regarding the said deed. On the other hand, if he would remain inimical and if I have to file a suit and obtain a decree, I shall have the decree cancelled without executing the same in case the property would pass on to you.
The first sentence contemplates a case where the father changes his mind towards his son and becomes favourable to him so as to allow the entire property to pass on to him. If this happened the respondent undertook to return the deed of mortgage duly cancelled. The next sentence contemplates a different contingency, namely, if the father continues to be inimical towards the appellant, the respondent was to institute a suit on the mortgage and obtain a decree. But after obtaining a decree he should not execute it but have it cancelled if the property should by that time pass on to his son, i.e., if the adoptive father should die.
3. On the facts of the case the second of the contingencies has happened by the death of the appellant's adoptive father after the trial but before the passing of the decree and the appellant therefore contends that he is entitled to rely on the agreement and call upon the respondent to desist from executing the decree which he had undertaken to cancel in case the father died and the properties passed on to the appellant. It may be mentioned before proceeding further that till the passing of the decree, the appellant was allowed under the terms of the agreement to remain quiet; and he had no right to object to the passing of the decree itself. It is only when the decree-holder seeks to execute the decree after the property had passed on to him that the appellant would have a grievance and would be entitled to complain that the terms of the agreement were being violated. In other words, we have before us an agreement which could not be pleaded until after the decree was passed and steps were taken by the respondent to execute it.
4. The learned District Judge was of opinion that the agreement cannot be pleaded as its effect in substance was to render the decree inexecutable; in other words to make it a nullity as he calls it. As we understand the learned Judge, he seems to be of the opinion that every agreement which bars execution of a decree operates to nullify a decree and therefore to abrogate it altogether. In Venkatasubba Mudah v. Manickammal (1925) 50 M.L.J. 364 : I.L.R. 49 Mad. 513. the identical question appears to have been considered by Wallace and Madhavan Nair, JJ., and they laid down the proposition that a pre-decree arrangement that a decree when obtained should not be executed can be pleaded in bar of execution. In other words, even where execution was absolutely prohibited by the agreement, such an agreement can be pleaded. There have been a great many cases decided upon this point by this and other Courts. The latest is the case of Papamma v. Venkayya : AIR1935Mad860 . , where the following statement of principle made by Pakenham Walsh, J., in Butchiah Chetti v. Tayar Rao Naidu (1930) 60 M.L.J. 721 : I.L.R. 54 Mad. 184. was approved:
On a review of the authorities it appears to us that the Full Bench case, Chidambaram Chettiar v. Krishna Vathiyar (1916) 32 M.L.J. 13 : I.L.R. 40 Mad. 233 . , only covers agreements which relate to execution and not to agreements which attack the decree itself.
What was meant is that agreements which relate to execution only not those which strike at the decree itself are pleadable in bar of execution. There were several judgment-debtors in the case before the Full Bench. The first of them, namely, the first judgment-debtor pleaded an agreement by which the decree-holder had undertaken not to execute the decree as against him. -The effect of the agreement obviously was that the decree was rendered inexecutable so far as one of the judgment-debtors was concerned. Pandrang Row, J., who delivered the judgment of the Full Bench observed as follows:
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 terras, 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.
Taking hold of the latter half of the second sentence in this passage, the learned advocate for the respondent urges that if the agreement had the effect of rendering the decree wholly in-executable against all the defendants and not merely as against one or some of them, the agreement would hit at the decree itself and not merely bar its execution. We are not satisfied that any such distinction in the principle to be applied was in the mind of the learned Judges at all. We see little difference between a case where the decree is rendered inexecutable against some only of the defendants or against some only of the properties and the case where a decree is rendered inexecutable against all the defendants or all the properties. Our attention was also called to another circumstance, namely, (that the decision of the Full Bench in Papamma v. Venkayya : AIR1935Mad860 . had reference to an agreement between the parties after the institution of the suit and not one as in the present case entered into before suit. Here again we are unable to see any sound principle of distinction and we have the satisfaction of seeing that the same view was adopted in the decision of this Court in Butchiah Chetti v. Tayar Rao Naidu (1930) 60 M.L.J. 721 : I.L.R. 54 Mad. 184. by a, Bench of two learned Judges Beasley, C.J. and Pakenham Walsh, J.
5. We are of opinion that the learned Judge erred in declining to permit the agreement to be pleaded. The order of the learned Judge is therefore set aside and the learned District Judge is directed to restore the petition to his file and dispose of it according to law. The appellant is entitled to his costs of the appeal in this Court from the respondent.