1. In this case there was a suit brought on a mortgage which ended in a decree. When the decree- holder came to execute his decree, defendants Nos. 3 and 4 pleaded that there was an agreement before suit between them and the mortgagee by which the mortgagee agreed to receive Rs. 1,500 from them and to free two of the mortgage items from liability. Both the Courts below have held that this agreement should have been pleaded in the suit and could not be raised as a defence to the execution. An agreement made before the passing of a decree which, if raised in the suit, would negative wholly or partially a defendant's liability to meet the plaintiff's claim, is one which would constitute a valid defence to the suit. Such an agreement cannot be pleaded as a defence to an execution application. This seems to be the general effect of the decisions both of this Court and other High Courts. But as the authorities both for and against this proposition have been fairly and clearly placed before no by Mr. Kamanna who appeared for the appellants, it is necessary to deal with them, while acknowledging our indebtedness to him for the pains he has taken to collect them.
2. In Rama Ayyan v. Sreenivasa Pattar 19 M. 230 the agreement provided for the discharge of the decree and in execution one of the defendants took objection to the assignment of the decree to the assignee-plaintiff and not to the validity of the decree as passed. In Mahomed Khan Bahadur v. Mahomed Munawar Sahib 31 M. 467 also the agreement was for the discharge of the decree. Chidambaram Chettiar v. Krishna Vathiyar 37 Ind. Cas. 836 dealt with the case of an agreement to give time for the satisfaction of the decree and not to assign the decree to others meanwhile. This is the way in which the case has been understood by the learned Judges who decided Arumugam Pillay v. Krishnaswami Naidu 56 Ind. Cas. 976 (see the judgment of Oldfield, J.) Then we come to two doubtful decisions. One is Krishnamachariar v. Rukmani Ammal 15 M.L.J. 370 , in which there is no discussion of the point whether the execution application could be granted. There was a discussion as to whether a certain document was a release and required registration; and after finding these points in favour of the judgment-debtor (the 6th defendant), the learned Judges simply expressed the opinion that the lower Court was right in refusing to grant the application to execute the decree. I do not regard this as an authoritative case on the question now before us. In Rukmani Ammal v. Krishnamachary 8 Ind. Cas. 1071 there is an observation that an agreement not to enforce the decree does not touch the validity of the decree and, therefore, it is a matter which tan form the subject of execution proceedings. On the fasts as Stated in that case I am, with great respect, unable to agree with this observation. An agreement that a decree to be passed should not be enforced, does, in my opinion, affect the question whether the decree should be passed and, therefore, it should have been made a Iground of defense in the suit. The conduct of a party who collusively allows a Court to pass a decree, at the same time privately agreeing with the plaintiff that such a decree should not be enforced, is, in my opinion, committing a fraud on the Conrt which should not be sountenanced by permitting him to put forward such a plea in execution.
3. The case in Subramania Pillai v. Kumaraveln Ambalam 39 M. 641 purports to follow a case in Laldas Narandas v. Kishordas Devidas 22 B. 463 , which is said to have been followed by Rukmani Ammal v. Krishnamackary 8 Ind. Cas. 1071 , already referred to, and purports to dissent from Eassan Ali v. Gauzi Ali Mir 31 C. 179. So far as this case dissents from the Calcutta decision whish, to my mind, is perfectly sound, I am respectfully unable to agree with it.
4. The cases in Bidurukota Pedda Veeranna V. Gondimalla Veeranna 38 Ind. Cas. 295 , Laldas Narandas v. Kishordas Devidas 22 B. 463 and Gauri Singh v. Gajadhar Das 6 A.L.J. 403 are cases of awards, which have been made out of Court through the intervention of mediators without a reference to arbitration by Court. In those cases the award has been embodied in a decree of Court and it has been held that in matters of costs an agreement not to recover costs could be raised in execution of a decree passed upon an award. That has no resemblance to the facts of the case before us. The case in Rajab Ali Choudhury v. Redayet Ali Chowdhury 29 Ind. Cas. 699 is somewhat peculiar. It was alleged that there was a fraudulent conspiracy for passing a collusive decree in a fictitious suit. When the defendant came forward and applied for executing the decree, the learned Judges held that the Court would interfere on behalf of the plaintiff to prevent the decree from being put into execution. I am of opinion that, on the authority of the most recent cases of this Court, viz. Chidambaram Chettiar v. Krishna Vathiyar 37 Ind. Cas. 836 , Arumugam Pillay v. Krishnaswami Naidu 56 Ind. Cas. 976 and Doraisami Moopan v. Subbalakshmi Palayee Ammal 46 Ind. Cas. 880 , which follows Chidambaram Chettiar v. Krishna Vathiyar 37 Ind. Cas. 836, the agreement pleaded in the present case could not be set up in execution and, therefore, the lower Courts were right in refusing to admit it.
5. The second appeal must be dismissed with costs.
6. I agree. I have nothing to add.