1. In O.S. No. 1 of 1889 of the District Court of Trichinopoly a Hindu widow, one Venkalakshmi Ammal, sued her stepsons, Venkatarama Iyer and Ramarathnam Iyer for maintenance, and on September 2, 1890, obtained a decree which applied to the maintenance then due and to future maintenance. The maintenance was made a charge on the family properties. The decree was not expressed in precise terms, but it was held in subsequent execution proceedings that the decree did in fact give a charge on the family properties and this question must be regarded as having been finally decided, On November 13, 1888, Ramarathnam sold his share in 393 acres of the family lands to one Krishna Iyer, who was defendant No. 21 in the widow's suit. On November 27, 1888, Krishna Iyer sold his interest in these properties to Vengama Naidu and Perumal Naidu. Between December 7, 1888, and June 2, 1890, Vengama Naidu and Perumal Naidu under 13 deeds disposed of their interest in the properties to various people. On September 27, 1908, the widow assigned her decree to the plaintiffs in the suit out of which this appeal arises. As assignees of the decree, the plaintiffs instituted proceedings in execution and obtained an order for the sale of Ramarathnam's interest. At the Court auction they purchased Ramarathnam's interest. On September 14, 1915, the plaintiffs filed a suit in the Court of the District Munsif of Kulitalai for partition of the properties and for possession of their half share. The District Munsifs Court had no jurisdiction to try the suit because of its value and the plaint had to be returned for filing in the Court of the Subordinate Judge. This was done and the suit was numbered as O.S. No. 45 of 1917. There were 101 defendants, of whom 98 were sued as alienees under transfer executed after December 7, 1888.
2. In 1891 the widow entered into an agreement with Vengama Naidu and Perumal Naidu under which they were to pay her a sum of Rs. 1,400 in satisfaction of her claim for future maintenance against the properties in their hands. Of the Rs. 1,400, a sum of Rs. 1,000 had already been paid. The agreement provided that when the balance of Rs. 400 had been received and the widow had realized the amount representing the arrears of maintenance at the date of the agreement, she was to execute a formal release of the charge created by the decree on Ramarathnam's half share in the family properties. The arrears were not realized and consequently the agreement was renewed in 1903 and again in 1906. The original agreement has not been put in evidence, but the agreements of 1903 and 1908 have been and are marked as Exs. 18 and 18 a, respectively. The agreement of 1903 reads as follows:
If according to what you have executed and given you pay with interest the sum of Rs. 400 which is the balance due after deducting the amount of Rs. 1,000 received from you, I shall, as soon as the whole of the decree amount due upto this day is realized, cause the plaintiff in the said suit to execute and deliver a memorandum of release in your favour to the effect that the liability for the decree of the lands purchased by you from Krishna Iyer has been given up. I shall not attach the said lands and proceeds in execution for the amounts due under the said decree.
3. This document was signed by one P. Ramaswamy Iyer as the agent of the widow. That he had the authority to sign is not in question. The agreement of 1906 is in similar terms, but instead of the words 'as soon as the whole of the decree amount due up to this day is realized' we have the words 'after the realization of the entire balance of the decree.' There can be no doubt that the effect of each of these documents was this: If Vengama Naidu and Perumal Naidu paid the balance of Rs. 400 with interest and the widow was able to realize from other properties the amount due to her as arrears of maintenance at the date of the document she would execute the contemplated release, in the meantime, she would not take steps in execution of the decree against the properties in the possession of Vengama Naidu and Perumal. These agreements were not recorded under the provisions of Order XXI, Rule 2, Civil Procedure Code, and therefore cannot be regarded as adjustments of the decree. On September 17, 1908, that is, two days before the assignment by the widow of her decree in favour of the present plaintiffs, Vengama Naidu instituted O.S. No. 406 of 1908 in the Court of the District Munsif of Kulitalai for a decree for specific performance of the agreement of 1906, the last renewal of the agreement of 1894. On August 14, 1911, the District Munsif dismissed the suit. An appeal followed to the Subordinate Judge of Trichinopoly, who held that the suit was premature and accordingly dismissed the appeal. A second appeal was then filed in this Court. The widow died daring the pendency of the appeal and the present plaintiffs were added as parties. This Court held that the plaintiffs, as assignees of the maintenance decree, were not the legal representatives of the widow and being assignees, an action for specific performance did not lie. This judgment was delivered on March 12, 1915.
4. Returning now to the suit out of which this appeal arises, the Subordinate Judge accepted the contention that the doctrine of lis pendens applied to the alienations and therefore regarded them as being subject to the charge in favour of the widow. But he dismissed the suit on the broad ground that there were enough equities with the alienee defendants to override all consequences arising from the operation of the doctrine of lis pendens. This judgment was delivered on August 21, 1922. An appeal was filed against this decision in this Court and it came before Krishnan and Venkatasubba Rao, JJ. on September 6 and 14, and on October 1 and 8, 1926. After the arguments had closed, judgment was reserved and was delivered on November 5, 1926. Venkatasubba Rao, J., agreed 0 that the doctrine of lis pendens did apply, and accepted the contention that the agreement of 1894 and its subsequent renewals did not operate to bar the execution of the widow's decree. The learned Judge, how ever, laid great stress on the fact that the plaintiffs had taken the assignment of the decree with full knowledge of the agreement, and considered that in these circumstances it was a fraud on the alienees to enforce the maintenance decree. He also held that the doctrine of part performance applied and on this basis refused the plaintiffs the reliefs they sought, but instead granted them a money decree for Rs. 400 with interest from 1894. Krishnan, J. considered that the suit could be maintained as framed and relied on the decision of this Court in Krishna Iyer v. Savurimuthu Pillai 42 M. 338 : 50 Ind. Cas. 584 : A.I.R. 1919 Mad. 424 : 36 M.L.J. 376 : 9 L.W. 443 : (1919) M.W.N. 248. In that case a Full Bench consisting of Abdur Rahim, Oldfield and Seshagiri Ayyar, J.J., held that a decree which had been satisfied was still capable of execution so long as the satisfaction was not reported to and certified by the Court. The only remedy for a judgment-debtor who is called upon to pay in execution proceedings, having already paid out of Court, is an action for damages, against the decree-holder, but when the decree has been executed by an assignee, no action for damages will lie against the assignee, notwithstanding that he has taken the assignment with notice of the fact that the decree has been satisfied. Krishnan, J. also accepted the application of the doctrine of lis pendens.
5. It falls to be observed that the doctrine of part performance on which Venkatasubba Rao, J. relied was not raised in the pleadings, was not made the subject of an issue and was not raised in the course of the arguments. Krishnan, J. added a note to his judgment, after he had perused that of Venkatasubba Rao, J. and that pointed out that this was an entirely new question which was not raised by the parties and not argued at the bar. While it is open to the Court to decide a case on any rule of law which it considers applies, it is not entitled to decide a case on a point taken by itself without giving the parties to the appeal an opportunity of meeting it. Order XL, Rule 2, Civil Procedure Code, says that the appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal, but the Appellate Court in deciding the appeal, shall not be confined to the ground of objection set forth in the memorandum of appeal or taken by leave of the Court under the Rule. There is, however, this important proviso. The Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground. With great respect, I consider that before Venkatasubba Rao, J. based his decision on the doctrine of part performance, he should have given the plaintiff's Advocate an opportunity of stating his views on the question. As the doctrine of part performance was relied on by Venkatasubba Rao. J. and has been made the subject of argument before us, I will express my views on the question. The widow had obtained a decree for maintenance and the amount she was entitled to receive by way of maintenance was made a charge on the family properties. If her step-sons did not pay what was due as maintenance she was entitled to proceed against those properties, notwithstanding that they had passed or that some of them had passed into other hands. It was open to her to agree with the alienees to release the properties in their hands from the charge, but until there was a release by her, valid in law, the properties remained charged. In this case all that had happened was that an agreement was entered into by the widow with the original alienees under which she undertook to release the properties with which they were concerned on certain events happening. Until they happened--and they never did happen--the properties remained charged. The fact that the widow received Rs. 1,000 out of the Rs. 1400 did not entitle Vengama Naidu and Perumal Naidu to a release. Therefore, I fail to see how the doctrine of part performance can have any application whatsoever. Venkatasubba Rao, J. also considered that the present action constituted a fraud on the alienees. There was here clearly no fraud. The plaintiffs took with notice of the agreement of 1894, but that did not disentitle them to execute the decree. They were at full liberty to do so.
6. I have already mentioned that it was accepted by the trial Court and by Krishnan and Venkatasubba Rao, J.J. on appeal that the doctrine of lis pendens applied. It was suggested at one stage in the arguments before us that this view was wrong but when it was pointed out to the learned Advocate for the respondent that the question had been raised in the execution proceedings to which the present parties or their representatives were parties and there decided, he very property did not press the point. It is clear that it was raised on the execution proceedings and there finally decided, and consequently the argument is not open to the defendants in this Court. The same remarks apply to a suggestion which has been made that the agreement of 1894 and its subsequent renewals operated to prevent the widow proceeding in execution against the properties in the possession of the alienees. This question was also raised in the execution proceedings and there also decided. Therefore, the position is this: The plaintiffs are the assignees in law of the widow's decree and they were entitled to execute it against the family properties, notwithstanding that they had passed into the hands of the defendants They did execute the decree and in the execution proceedings they bought in the half share of Ramarathnam Consequently they now possess Ramarathnam's half interest in the family estate. It has been suggested that Section 91 of the Trusts Act applies, but it is; clear that it does not. The decision in the -suit for specific performance entirely disposes of this argument.
7. The appeal will be allowed and the case remanded to the trial Court for disposal on the merits. The appellant will be entitled to costs here and before the Division Bench. He will also be entitled to a refund of the court-fee paid on the appeal as on the Letters Patent Appeal. A regrettable feature of this case is the tremendous delay which has taken place. The suit was filed as long ago as 1915 and an appeal lay, direct to this Court. As I have pointed out, the learned trial Judge delivered judgment on August 21, 1922. An appeal was filed in that year to this Court and it came before Krishnan and Venkatasubba Rao, J.J., in September and October, 1926. The learned Judges disagreed, and in accordance with the practice of this Court which then ruled it was necessary, that the appeal should be heard by a Full Bench. It has taken 11 years for this to happen. The appeal has been in this Court from 1922 until now a total period of 15 years. But for the fact that these dates appear on the record, I should not have believed it possible that there could be such delay. The fact that the number of parties is large and that some of them died and their legal represent- atives have bad to be brought on the record can be no justification for this great delay. The delay is so great that it would appear to amount to a scandal, and I have directed that a full inquiry be made into the matter.
8. I agree.
9. I agree.