1. This appeal raises the question whether in execution of a decree an arrangement between the decree-holder and the judgment-debtor entered into before the suit was filed can be pleaded in bar of execution. The suit in question was O.S. No. 270 of 1938, a suit for the recovery of money from four persons, of whom the present respondent was the 1st defendant. A decree was passed for the recovery of a sum of Rs. 2,223-13-6 with costs against the four defendants jointly and severally. When, however, the plaintiff-appellant proceeded to take out execution, the 1st defendant pleaded an arrangement by which the appellant had agreed that he would proceed against the 2nd and 4th defendants and recover the amount due under the decree from them and that, only if he could not recover from them, would he take steps to recover the whole amount or the balance that was due from the 1st defendant. The 1st defendant's case was that the appellant had consented to this agreement because he had paid a sum of Rs. 700 towards the amount due by him and the other defendants to the appellant, whereas the other defendants had paid nothing. The case of the 1st defendant was not, therefore, that he was entitled to a deduction of any amount from the amount sued for and decreed, but that the fact that he had made this previous payment had induced the appellant to enter into the agreement. Both the trial and the lower appellate Courts have found that this agreement was true. The learned District Munsif, however, was of opinion that, although a pre-decretal agreement can be pleaded in bar of execution of a decree in this case the application was sustainable under the terms of the agreement since the agreement was not that he should exhaust all remedies against the other defendants before he proceeded against the first. The learned Additional District Judge of Coimbatore agreed with the District Munsif that the agreement could be pleaded but holding that before execution could be taken against the 1st defendant all remedies must be exhausted against the others, reversed the order of the trial Court that execution should proceed against the 1st defendant and allowed the appeal.
2. The main argument advanced in this appeal is that this is not a case in which, on authority, the pre-decretal agreement can be pleaded. Since the Full Bench decision in Chidambaram Chettiar v. Krishna Vathiyar (1916) 32 M.L.J. 13 : I.L.R. Mad. 233, it cannot be doubted that pre-decretal arrangements between decree-holders and judgment-debtors in appropriate cases can be pleaded in bar of the execution of the decree. In that case, in holding that pre-decretal arrrangements could be pleaded as a bar to execution of the decree, the majority of the Full Bench rested their decision on the principle of stare decisis. The actual pre-decretal arrangement which in Chidambaram Chettiar v. Krishna Vathiyar (1916) 32 M.L.J. 13 : I.L.R. Mad. 233 it was held, could be pleaded in bar of execution, was an arrangement that for a certain period after the passing of the decree execution would not be taken against the defendant judgment-debtor. Later cases which followed this decision have made it clear that the general distinction between pre-decretal arrangements that can be pleaded in bar of execution and pre-decretal arrangements that cannot be pleaded in bar of execution is that, arrangements cannot be pleaded in bar of execution if they vary or attack the decree but can only be pleaded if they relate to the execution of the decree. It is no doubt not easy in any particular case to determine whether an arrangement varies the decree or not. If the question was one of first impression, it might be said that any pre-decretal arrangement which derogates from the rights given to the decree-holder by virtue of the decree varies that decree and, if that was the principle and test to be applied, it might be difficult to see how a pre-decretal arrangement which prevented a decree-holder from taking out execution immediately against his judgment-debtor, seeing that the decree itself gave him that right, does not amount to a variation of the decree., On the principle of 'stare decisis', 'however the Full Bench in Chidambaram Chettiar v. Krishna Vathiyar : AIR1935Mad860 , held that on the facts of the case before them the decree was not varied. What, therefore in this case had to be done was to see whether the agreement is, according to the decided cases, a pre-decretal arrangement which can be pleaded as a bar to the execution of the decree. On the face of it the facts of the present case, where all that the pre-decretal arrangement has done has been to compel the decree-holder to take out execution as against the other defendants before he proceeds either for the balance or the whole of the decree amount against the 1st defendant are not easily distinguishable, from a case in which the agreement was that the appellant should not proceed for a specified time after the date of the decree against the defendant. Chidambaram Chiettiar v. Krishna Vathiyar (1916) 32 M.L.J. 13 : I.L.R. Mad. 233, would appear to be at least as strong a case as the case now before me. There is, however, another Full Bench case which is in point--Papamma v. Venkayya : AIR1935Mad860 . In that case it was held that a pre-decretal arrangement that execution should not be taken, out against one of the defendants (the 3rd defendant) was an arrangement which did not vary the decree and that consequently the arrangement could be pleaded in bar of execution against the 3rd defendant. This, it seems to me, is a very much stronger case than the present where the appellant has merely agreed to do what in any case he might have done, namely, to proceed against the second and fourth defendants before he proceeded against the 1st defendant. I am of opinion therefore that the decisions in Chidambaram Chettiar v. Krishna Vathiyar (1936) 32 M.L.J. 13 : I.L.R. Mad. 233 and Papamma v. Venkayya : AIR1935Mad860 are wide enough, as the learned District Judge has said, to cover the facts of the present case and that the contention of the appellant must fail.
3. It is also argued for the appellant that this case is distinguishable from Chidambaram Chettiar v. Krishna Vathiyar (1936) 32 M.L.J. 13 : I.L.R. Mad. 233 and Papamma v. Venkayya : AIR1935Mad860 and indeed from other cases which have been cited, because they were cases where the arrangement set up had been entered into during the pendency of the suit whereas the present is a case where the agreement was made before the suit was instituted. There seems to me no difference in principle between an arrangement set up in bar of execution which has been made before the institution of a suit and an arrangement which has been made during its pendency. In both cases the question will be whether the agreement relates to the execution of the decree or whether it has varied or attacked the decree. Learned Counsel for the appellant in support of his contention : that there is a distinction has relied on the case reported in Mallayya v. China Kotayya (1921) 14 L.W. 317. That indeed was a case in which an arrangement which was entered into before the suit was instituted was set up, and it was held that it could not be pleaded in bar of execution. It seems clear, however, from the judgment that it was not held that the arrangement could not be pleaded in bar of execution simply because the date of the arrangement was prior to the institution of the suit. The observations of Spencer, J., and the reasoning on which his judgment was based would have applied equally to an arrangement come to during the pendency of the suit. It should also be noted that in another case to which I have been referred, viz., Butchia Chetti v. Tayar Rao Naidu (1930)60 M.L.J. 721 : I.L.R. Mad. 184 it was observed that whether the arrangement was entered into pending suit or before institution of the suit appeared to make little difference. The fact therefore, that the arrangement set up was prior in date to the institution of the suit does not appear to be a reason for distinguishing this case and so differing from the conclusion reached by the learned District Judge.
4. The last point taken by learned Counsel for the appellant is that the learned District Judge should have agreed with the trail Court that in any case the appellant had complied with the terms of the agreement by the action which he had taken. That action was to have notice served on all the defendants. When however, the petition came on for hearing, defendants 2 to 4 were' absent; the petition was heard as between the appellant and the 1st defendant who was represented and no further action was taken against defendants 2 to 4. It is not necessary here to decide exactly what interpretation should be put on the agreement that the appellant should first proceed against defendants 2 to 4 since it is abundantly clear that simply by serving notice on them and then taking no further action to attach their property or realise anything from them when they did not appear he has not fulfilled the terms of the agreement.
5. In my opinion therefore the decision of the learned District Judge was right. The appeal is consequently dismissed with costs. Leave to appeal is refused.