1. This case is practically in continuation of the litigation of which the last stage is reported in Vol. XXIV, Weekly Reporter, Page 282. The present plaintiff obtained a decree against one Chitkumari for a certain sum of money, and, in the course of executing it, a petition, to which the plaintiff, decree-holder, assented, was presented on behalf of the debtor, acknowledging a certain amount to be due from her and promising to pay it off by instalments. Money was paid under this agreement, but Chitkumari having died, execution of the decree for the balance outstanding was taken out against the present defendants as her representatives. Objection was raised, and finally allowed by a Division Bench of this Court--see Hera Lall Mookerjee v. Roy Dhunput Singh (24 W.R. 282), which held that execution could not proceed, as it was barred by limitation, and the agreement for payment by instalments could not be substituted for that decree, or extend the ordinary term of limitation. The plaintiff has now brought the present suit to recover the balance duo on the agreement entered into by Chitkumari as specified in the petition presented by her.
2. The Subordinate Judge dismissed the suit, holding that the consideration of the kistibandi 'was the sum due under the decree, execution of which was at that time barred by limitation,' and that as the debt covered by that agreement could not be legally recovered, there was no valid legal consideration for supporting the kistibandi.
3. In appeal this order was set aside, the claim being allowed and the defendants have now brought this special appeal.
4. Mr. Evans for the special appellant contends that the fact that there has been no consideration has already been decided by the judgment reported in Vol. XXIV, Weekly Reporter, page 282, but we are of opinion that this matter was not and would not be then decided, inasmuch as in that stage of this case the only question before the Court was whether execution could proceed with respect to the original decree or on the kistibandi in substitution of that decree; and in accordance with precedents of this Court, it was held that execution of the decree itself was barred by limitation, and the kistibandi could not operate as a revival of that decree so as to make it capable of being executed. There may be expressions in the course of the judgment that intimate the absence of consideration, but that was not properly before the Court, and cannot preclude our determination of the point in the present case.
5. As regards the petition made on behalf of the debtor, now represented by the defendants, in the proceedings in execution of the decree held by the plaintiff, we are of opinion that it may be regarded as embodying the terms of an agreement entered into between the parties such as has been found to have been entered into, whereby, in modification of the terms of the decree which permitted immediate realization of the judgment debt, it was agreed that payment should be made by instalments. In consideration for this, the decree-holder consented to abstain from enforcing his right to immediate payment by executing his decree. That he could and would have done so is clear from the action of the Court. In giving effect to this agreement more than one payment of the instalments has been made by the original debtor and the defendants, and it is only on default made by the latter that objection has been raised. The only objection that we need consider is whether there was a good consideration for this agreement, since it is contended that, inasmuch as the consideration depended upon the right to execute the decree, and it has been held that that decree was at that time inoperative, there is an absence of all valid legal consideration.
6. We are of opinion that, though this appears to have been the finding of the Court when the decree was afterwards executed in default of payment of some of the instalments, when that agreement was made the decree was capable of being executed under the law as it was then administered, it was by the parties, 'as well as by the Court of execution,' treated as a good decree, and we should be disinclined to hold that what was then a valid agreement has since become null and void.
7. But we agree with the learned Advocate-General that the principle, which is expressed in Section 25, Clause 3, of the Contract Act of 1872, is not one altogether now to our Courts, and that under it this kistibandi would be valid without any consideration, so that we have no difficulty in affirming the decree of the lower Appellate Court and dismissing this special appeal with costs.