1. This is an appeal from a judgment of the Subordinate Judge of Burdwan whereby he affirmed a decision of the Munsif of the third Court at Burdwan.
2. The facts out of which these proceedings arose are stated by the learned Munsif in the early part of the judgment which he gave on January 15, 1934.
3. The present appellant Sarada Prosad Ghose had made an application under Section 47 of the Code of Civil Procedure. The present respondent Rokeya Bibi had obtained a decree against the appellant for a certain sum for rent. The decree was dated July 26, 1930, and that decree was put to execution, and proceedings which were described as Rent Execution Case No. 252 of 1930 in the Court of the Munsif at Burdwan, were started. Subsequently, on August 13, 1930, there was an agreement between the parties as to the method in which the decree was to be satisfied, or to put the matter in another way, there was an adjustment of the decree. By that agreement the amount due under the decree was made payable by certain instalments, and there was a provision in the agreement, for payment of interest at a certain rate. It also contained a provision that if the judgment-debtor failed to pay any instalment in proper time, the decree-holder would be entitled to realise the whole amount by means of execution proceedings.
4. In June, 1931, there were further proceedings in execution which were described as Rent Execution Case No. 305 of 1930. That case was disposed of on June 20, 1931. There were further execution proceedings being Rent Execution Case No. 53 of 1933, which were disposed of on July 25, 1933. In those proceedings the judgment-debtor filed an objection which was heard as Miscellaneous Case No. 39 of 1935, and finally the present proceedings were started on August 9, 1933.
5. At the hearing before the 3rd Munsif at Burdwan, the applicant, that is to say the judgment-debtor contended that me present execution petition was barred by limitation and also by res judicata and that the solenama (or adjustment) which had been made in Rent Execution Case No. 252 of 1930 was not a part of the decree, and it was not legal, or valid or binding on the parties. It was further contended that the solenama was at the most a mere contract which could not be enforced in execution proceedings, but could only be enforced by means of a regular suit. The learned Munsif said in his judgment:
It appears that the rent decree passed on July, 26, 1930, was completely superseded by a solenama on August, 13, 1930. It further appears that the old rent decree being non-existent, was found not capable of execution.
6. Then follows this very important observation:
In the present execution case the decree-holder seeks to execute the solenama or the adjusted decree and not the superseded decree which has been extinguished by virtue of the solenama or adjustment.
7. It is obvious that there are no real merits in this case as regards the attitude adopted by the judgment-debtor or on the contentions pat forward on his behalf. It appears that at the time when the solenama was entered into, that is to say on August 13, 1930, a sum of Rs. 61 was paid by the judgment-debtor to the decree-holder, and after that nothing more whatever was paid and so on August 9, 1933, the present proceedings were instituted. The learned Munsif came to the following conclusion:
The solenama although it is an agreement, is binding upon the parties and is executable as a decree without recourse to any suit.
8. Then he said:
The period of limitation will run from the date of adjustment.
9. In support of that view he relied upon a decision of this Court in Hridoy Mohan Sanyal v. Khagendra Nath Sanyal : AIR1929Cal687 .
10. The Subordinate Judge on all material points agreed with the view taken by the learned Munsif, and he seems to have come to the conclusion that:
In the present case the Court varied the decree by noting the instalments in the Suit Register.
11. In the concluding paragraph of his judgment the learned Subordinate Judge said:
The last execution in which the decree-holder was trying to execute the original decree gave rise to an objection case by the appellant who contended that after the adjustment the original decree was no longer executable. The Court accepted that contention and nobody appealed against that order.
12. We have been invited by Mr. Choudhury on behalf of the appellants before us to come to the exclusion that the decision of. Mr. Justice B. B. Ghose and Mr. Justice S.K. Ghose in the case I have just mentioned is no good law. In that case it was held that since the parties, by agreement, can arrange their own procedure and give jurisdiction to the Court to adopt that procedure, and since the parties agreed that the money due should be realised by execution, the Court-had jurisdiction to proceed by way of execution. That decision is based on a number of cases, notably the following: Pisani v. Attorney-General for Gibraltar (1874) 5 PC 516 : 22 WR 900 : 30 LT 729, Sadasiva Pillai v. Ramalinga Pillai 2 IA 219 : 24 WR 193 : 3 Sar. 519 : 15 BLR 383 : 3 Suth. PCJ 190 (PC), Thakur Dayal Singh v. Sarju Pershad Misser 20 C 22 and Muhammad Sulaiman v. Jhukki Lal 11 A 228 : AWN 1889, 53.
13. There are, however, a number of authorities, chiefly it is true, in other High Courts and one or two in this Court, in which a contrary view has been taken and in my opinion it is extremely doubtful whether the proposition laid down in the case of Hridoy Mohan Sanyal v. Khagendra Nath Sanyal : AIR1929Cal687 (supra) is really good law. If in the present circumstances it was simply a question of our having to decide that whether in any circumstances it is possible for an agreement between the parties to supersede a decree of the Court and then to put it to execution as if it were itself a decree, it would be extremely difficult to hold that the parties can by an agreement substitute as it were a fresh decree in place of the original decree, or even vary the terms of the original decree. In our opinion, however, it is not necessary that we should decide that point, because in the present instance we are disposed to hold on the authority of a decision of the Full Bench of the Allahabad High Court in Gobardhan Das v. Dau Dayal : AIR1932All273 . in which a number of previous decisions were considered and reviewed, that in the circumstances of this case it was not open to the parties to extend by their agreement, the period of limitation laid down as applicable to execution matters. If in the present case the decree-holder had sought to put to execution the solenama within a period of three years from the date of the original decree then it would have been necessary to decide whether we ought to follow the judgment of Mr. Justice B. B. Ghose and Mr. Justice S.K. Ghose. But in the present instance it is clear from the dates that the present execution proceedings were instituted at a time when more than three years had elapsed from the date of the original decree. The original decree was made on July 26, 1930, and these proceedings were instituted in August, 1933, so that whether the matter falls within the provisions of the ordinary law of limitation or under the provisions of the Bengal Tenancy Act, it was outside the period prescribed.
14. In these circumstances while deprecating the attitude and action taken up by the judgment-debtor, we find ourselves forced to the conclusion that the decree-holder had lost whatever rights he possessed so far as enforcing her claim in execution proceedings.
15. In that view of the matter we come to the conclusion that this appeal must be allowed. But having regard to the circumstances we make no order as to costs.
M.C. Ghose, J.
16. I agree with my learned brother that this appeal should be allowed.
17. It was a rent decree obtained on July 26, 1920. In the first execution case there was an adjustment between the parties on August 13, 1930, by which the judgment-debtor agreed to pay the decretal amount by cert in instalments. The instalments not being paid, the decree-holder instituted a further execution case which the judgment-debtor opposed on. the ground that the decree had been superseded by the subsequent agreement. The Court accepted the judgment-debtor's plea and dismissed the execution petition. Thereafter the decree-holder instituted the present execution case on August 9, 1933, asking execution of the agreement of August 13, 1930. Both the Courts below held on the authority of the case of Hridoy Mohan Sanyal v. Khagendra Nath Sanyal : AIR1929Cal687 , that an agreement which superseded the original decree is executable as a decree.
18. Having regard to the various decisions of this Court and of other High Courts which have been cited before us, the question in my opinion in not free from difficulty, but it is, as my learned brother stated, not necessary to decide the question in this case. It is clear having regard to the provisions of Article 6 of Schedule Ill of the Bengal Tenancy Act, which limits the life of a rent decree to three years, that the present decree was barred on August 9, 1933 when the execution case was instituted.
19. I agree that the appeal should be allowed, and having regard to the conduct of the judgment-debtor no cost should be allowed to him.