1. Petitioner, Radhakrishna Chetti, seeks to revise the order in E. A. No. 149 of 1969 in E. P. No. 532 of 1963 in H. R. C. No. 4319 of 1962 on the file of the Fifth Assistant Judge, City Civil Court, Madras, allowing the application of the respondent, Rajagopala Pillai, under Section 144, Civil P. C. for redelivery of the property leased to him. It is necessary to state only a few facts for the disposal of this civil revision petition.
2. The petitioner filed H. R. C. No. 4319 of 1962 on the file of the House Rent Controller, Madras for eviction of the respondent, but it was dismissed on 12-10-1964, and thereupon he preferred H. R. A. 41 of 1965 on the file of the Court of Small Causes, Madras, and obtained an order for eviction on 16-2-1966. He claims to have put one Siddique in possession of the property after obtaining possession through court. Siddique filed O. S. 1504 of 1964 on the file of the City Civil Court. Madras against the petitioner and the respondent herein for injunction. On 28-3-1966, there was a decree for a permanent injunction in favour of the plaintiff, Siddique. It appears from the copy of the decree that it was made in pursuance of an endorsement on the plaint that the respondent had no defence to the action, as an eviction order had been passed against him. The petitioner's case is that a sum of Rs. 4000/-was paid to the respondent by the said Siddique and it is in pursuance of this there was a decree in the City Civil Court suit.
But the respondent, who had already filed a revision to this court in C. R. P. No. 1991 of 1968 proceeded with it and obtained an order on 13-9-1968 setting aside the eviction passed against him. The petitioner filed a review, application relying on the receipt alleged to have been passed by the respondent and pleading that the respondent had prosecuted the civil revision petition contrary to his agreement that he will not press it. But this court did not find any ground to review the prior order setting aside eviction and dismissed the review petition on 14-2-1969. Thereafter, the respondent filed E. A. 149 of 1969 on the file of the City Civil Court under Section 144, Civil P. C. for re-delivery of the property taken on lease by him. The petitioner herein resisted that application by relying on the decree for injunction obtained by Siddique in O. S. 1504 of 1964 on the file of the City Civil Court, Madras but his contention was negatived and restitution was allowed. Hence, the petitioner has come forward with this revision petition.
3. Order 21, Rule 2, Civil P. C. has no application to this case, as the alleged adjustment put forward by the petitioner was prior to the decree passed by this court in C. R. P. No. 1991 of 1966 (Mad). It has been rightly pointed out by this court in its decision in C. R. P. 1991 of 1996 (Mad) that the petitioner ought to have appeared and contested the civil revision petition filed by the respondent. He could have very well taken the objection that in pursuance of the agreement evidenced by the decree for injunction, the respondent could not get an order setting aside the eviction. Order passed against him. In fact, he could have filed an application under Order 23, Rule 3, Civil P. C. in that civil revision petition to record that adjustment, but he failed to do so.
4. The only question that remains to be considered is whether this predecretal arrangement could be gone into in execution proceedings. It is clear from page 223 of Mullah's Civil P. C. 13th Edn. that there is conflict of opinion among the several High Courts on this question, but so far as this High Court is concerned, it has been held that a distinction should be made between an agreement which related to the mode of execution or satisfaction of a decree and one which has the effect of rendering a decree nugatory and inexecutable in whole or in part and that while the former could be pleaded in execution, the latter could not be. This is clear from the Full Bench decision in A. Papamma v. Venkiah, ILR 58 Mad 994 : AIR 1935 Mad 860. The alleged arrangement put forward by the petitioner is an attack against the decree of this court in C. R. P. 1991 of 1966 and it is not one of the characters referred to in Chindambaram Chettiar v. Krishna Vathiyar, ILR 40 Mad 233 : AIR 1918 Mad 1174 which related only to the mode of execution. Hence, the plea raised by the petitioner cannot be entertained by the executing court under Section 47. Civil P. C. and the remedy of the petitioner, if any, is by an independent suit, I may add that the respondent does not admit the genuineness of the receipt relied on by the petitioner.
5. For the foregoing reasons, the civil revision petition is liable to be and it is hereby dismissed with costs.
6. Revision dismissed.