Panchapakesa Ayyar, J.
1. This civil misc. appeal raises an interesting question of law, namely, whether, under Order XXI (21), Rule 2, C. P. C., a decree for the dismantling of a wall, & the delivery of a plot on which the wall stands, to the D. H., can be adjusted after the decree is passed, & the adjustment pleaded 'in bar of execution', though such an adjustment has not been certified to the Ct., & whether in such a case the mere award of a sum of money as costs in the decree would prevent such an arrangement being gone into or wculd enable the J. D. to escape execution for the costs also till the arrangement Is gone into. The facts are briefly these :
2. The applt. here, Seetharamayya, got a decree for possession of a small strip of land from the resp., Pattayya, in O. S. No. 736 of 1944, & the deft. was asked to give delivery after dismantling the wall standing on that strip of land, & directed to construct a wall on his own land beyond that strip if he liked. The J. D. did not dismantle the wall & deliver the strip of land. So execution was taken up by the D. H. The J. D. obstructed when the amin went with the warrant, according to the D. H.; but, according to the J. D. what happened was that on sighting the amin, the J. D. got four panchayatdars from different villages together & they effected an amicable settlement between him & the D. H., under which the J. D. agreed to pay Rs. 150 towards the costs of the suit to the D. H., & Rs. 150 for the strip of land on which the wall stood, & the D. H. agreed to execute a sale deed in respect of that strip of land in favour of the J. D., & actually wrote out a sale deed, & kept it with him without registering it. The applt. denies that there was any such agreement, as alleged by the J. D., & says what happened was this. The J. D., having obstructed peaceful delivery, it was necessary to obtain police aid. Meanwhile, the D. H's wife fell sick, & the D. H. had to attend to her urgently instead of applying to the Ct. at once for police aid for the demolition of this wall & the recovery of the strip of land. According to him, he filed C. M. P. No. 376 of 1947 as soon as his wife was well, & wanted execution to be proceeded with police aid. The J. D. pleaded this arrangement before the Addl. Dist. Munsif, Vijayawada, who heard C. M. P. No. 376 of 1947. The learned Dist. Munsif held that the adjustment pleaded had not been certified within the prescribed time. He also observed, very cryptically & without any discussion, that there were no merits in the counter, & allowed the E. P. to proceed. The J. D. appealed to the Sub Ct., Vijayawada. The learned Subordinate Judge held that, under the ruling in 'Narayanasami v. Rangaswami', 49 Mad 716, an arrangement like this, not certified by Ct., could not be pleaded regarding decrees where money is payable but could be pleaded in other decrees & should be gone into & a decision given, as, under the P. C. decision in 'Oudh Commercial Bank Ltd., Fyzabad v. Bind Basni Kuar', 1939 1 MLJ 652, the parties were at liberty to contract as they liked regarding the terms of a decree, & such adjustments could be gone into Under Section 47, C. P. C. So, he set aside the order of the Dist. Munsif & directed a full enquiry into the alleged arrangement & adjustment set up by the J. D., allowing both sides to let in all relevant, oral & documentary evidence they liked to adduce, & directing the appeal costs to abide the result of the remanded E. P. The D. H. has filed this Civil Misc. Appeal against that order of remand.
3. I have perused the entire records, & heard the learned counsel on both sides. Mr. Rajeswara Rao, for the applt., raised three main contentions. the first was that the learned Subordinate Judge himself, having reld. on the ruing in 'Narayanaswami v. Rangaswami', 49 Mad 716, & having held that an adjustment not certified by Ct. regarding a decree where money is payable under the decree, cannot be gone into, erred in directing an enquiry into this arrangement regarding a decree where there was a substantial sum of money, namely, Rs. 145 payable under the decree as costs. I cannot agree. It seems to me that the ruling reld. on by Mr. Rajeswara Rao for this position will not help him. No doubt, he is quite right in relying on the position that where the decree proper provides for payment of 'money', as well as other reliefs, an adjustment of such a complex decree could not be recognised, unless certified to the Ct. within the time allowed under Order XXI (21), Rule 2, C. P. C. In other words, supposing there is a decree for recovery of possession of immoveable properties & for a sum of money as mesne profits, or arrears of rent, or damages, the ruling in 'Narayanaswami v. Rangaswami', (49 Mad 716), will certainly preclude an enquiry into an arrangement not certified to Ct. within the prescribed time under Order XXI (21), Rule 2, C. P. C. But it appears to be quite unsustainable to contend that costs, which are a feature of almost every decree, whether in cases of immoveable property or pure money decrees or even guardianship petna., matrimonial petns. etc., can be held to be a portion of the complex 'decree proper', as contemplated in the ruling reld. on by him. One simple test will be this. Can any one sue another for costs alone before the suit is decided, though it is true that in every plaint one of the reliefs usually claimed is costs. So I take it that the ruling reld. on by him will apply only to cases where money is claimed as a relief in the suit & not merely costs allowed in the decree as an adjunct to such relief. It is significant to note that our Ct. has not taken as wide a view regarding Order XXI (21), Rule 2 like the Bombay, Calcutta, Nagpur, & Patna H. Cs., is applied it to every kind of decree, & has specifically restricted its application to complex decrees containing a decree for money 'as part of the decree', &, of course, also to the costs portion of other decrees, where costs are allowed. If Mr. Rajeswara Rao's contention were accepted, the decision in 'Narayanasami v. Rangasami', 49 Mad 716, (which follows a long catena of decisions, as in 'Sankaran v. Kamara', 22 Mad 1821; 'Abdul v. Bathula', 23 IC 530, & Ramakrishua v. Balakrishna', 43 Mad 476, will be creating a distinction without a difference, which I am loath to believe is what the learned Judges intended. So, though in the P. C. ruling in 'Oudh Commercial Bank Ltd., Fyzabad v. Bind Basni Kuar' 1939 1 MLJ 652, it was held generally (see p. 562), that an uncertified adjustment could not be recognised, I overrule this contention in the circumstances of this case.
4. There is greater point in his next contention, namely, in execution, that, even so, costs, once decreed, become money payable under a decree, &, therefore, under Order XXI (21), Rules 2 & 4, (?) payment or adjustment of money payable even as regards costs in a decree shall not be recognised by any Ct. executing a decree unless it has been certified within the time prescribed, as it is 'money payable under a decree of any kind'. He said that Order XXI (21), Rules 2 & 4 (?) applied to 'a partial discharge' also. The learned counsel for the opposite side has no satisfactory reply to this contention, & I accept it as correct. The ruling in 'Ammaniamma v. Muddappa', 1944 2 MLJ 336, by a Bench of this Ct., makes it clear. In that view, the lower Ct's order would have to be modified by giving the decree holder full liberty to proceed with the E. P. as regards costs, leaving the other matter, namely, the alleged arrangement regarding the plot of land & the wall, to be gone into by the learned Dist. Munsif at the remanded hearing. Though the judgment debtor contended that he agreed to pay Rs. 150 to the D. H. for costs, that was not an adjustment proper, since Rs. 145 had been awarded as costs in the decree itself, & the balance of Rs. 5 represented only the interest payable. The learned counsel for the J. D. said that his client was always ready to pay the costs. Mr. Rajeswara Rao's contention that, once costs are awarded, a money decree would ^become part of the complex decree does not appeal to me. Then there will be very few decrees which will ever be covered by adjustments or arrangements, as, in almost very decree, regarding immoveable property etc., there will be an order of costs. But that need not stand in the way of my recognising the force of this contention & allowing execution to proceed for costs.
5. The third contention of Mr. Rajeswara Rao was that the arrangement set up by the J. D. regarding the land & the wall was too ludicrous & incredible to deserve any remand for consideration. I cannot agree, This is not the stage where we can go into the alleged incredible nature of an arrangement. No evidence has been let in, & it will be Improper for any Ct. to hold an arrangement to be incredible before considering the evidence regarding It. Even a lunatic can he pronounced to be so by a Ct. only after hearing him.6. In the result, the judgment & decree of thelower appellate Ct. is modified by allowing theE. P. to proceed regarding costs alone, & is confirmed regarding the remand to the Disk Munsiffor an enquiry into the arrangement set up aboutthe strip of land & wall. In these circumstances,I direct the resp. to pay half the advocate's feesof the applt. In this civil misc. appeal & his fullprinting charges, & bear his own costs himself.