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Judgment
Sadasiva Aiyar J.
1.This is an appeal against an appellate order passed in execution proceedings. The appellants are defendants Nos 1, 2 and 4 to 9 and 11. The
respondents are plaintiffs Nos. 4 and 5, the 3rd defendant and plaintiffs Nos. 1 to 3.
Plaintiffs Nos. 4 and 5 applied for execution on behalf of themselves and of plaintiffs Nos. 1 to 3 of a decree passed by the Subordinate Judge
of Palghat in O.S. No. 25 of 1906. Plaintiffs Nos. 4 and 5 were minors when that suit was decreed in favor of themselves and in favor of plaintiffs
Nos. 1 to 3. The plaintiffs Nos. 1 to 5 formed a Thavazhi having separate Thavazhi property but not divided from the common Tarwad of which
the 1st defendant is the Karnavan. Plaintiffs Nos. 1 to 3 are senior in age to plaintiffs Nos. 4 and 5 who are females, plaintiffs Nos. 1 to 2 being
male members of the Thavazhi. The objections taken by the defendants to the execution of the decree at the instance of the 4th and 5th plaintiffs
may be summarised thus:
(a) The Subordinate Judge''s decree in O.S. No. 25 of 1906 now sought to be executed was set aside by a compromise petition, exhibit IV filed
u/s 375 of the old CPC in the District Court of South Malabar, in which court Appeal No. 82 of 08 had been filed by the 1st Defendant against
the decree of the Subordinate Judge of Falghat in O.S. No. 25 of 1906;
(b) Even if the Subordinate Judge''s decree in O.S. No. 25 of 1905 was not set aside in appeal in the appeal Suit No. 82 of 1908 the decree was
satisfied by the terms of the compromise petition, the said compromise having been sanctioned by the District Court on behalf of the minors u/s
462 of the old C.P.C .
(c) The registered karars, Exhibits, I and II dated the 8th May 08, are also binding upon the plaintiffs including the minor plaintiffs.
These were the three contentions raised before the Subordinate Judge of Palghat in the present execution proceedings. The learn-ed subordinate
Judge accepted these contentions and dismissed the execution application with costs.
Plaintiffs Nos. 4 and 5 appealed to the District Court in A.S. No. 891 of 1910 against the Subordinate judge''s above order dismissing their
execution application. During the pendency of that appeal, the defendants put in a petition, No. 454 of 1911 in the District Court, alleging that the
execution appeal No. 891 of 1910 had been compromised by a registered Sammatha pathram, executed by the plaintiffs Nos. 4 and 5 on the 27th
September 1911(See Exhibit A. and M.P. No. 454 of 1911) and that in accordance with that Sammatha pathram, the execution appeal No. 891
of 1910 ought to be dismissed. The plaintiffs Nos. 4 and 5 contended in the District Court that the registered Sammatha pathram, Ex. A. was
forced from them by the 2nd defendant, that the 5th plaintiff who was still a minor, was fraudulently mentioned in it as a major and that Ex. A.
therefore was invalid.
The learned District Judge upheld the contention of plaintiffs Nos. 4 and 5 that the Sammatha pathram Ex. A. was not binding upon plaintiffs
Nos. 4 and 5, both on the ground that Ex. A. was not voluntarily executed by plaintiffs Nos. 4 and 5 and also on the ground that the 5th plaintiff
was a minor when she executed the document. Now it has been held in Appasami Nayakan v. Varadachari ILR (1896) M. 419 that when a
compromise u/s 375 is alleged by one party to have taken place and it is denied by the opposite party an issue should be framed by the court on
that question and preliminarily decided. We might take it that in the petition No. 454 of 1911 filed by the defendants, such an issue was framed and
that it was decided against the defendants by the District Court on its finding that Ex. A. was not voluntarily executed and that the 5th plaintiff was
a minor when she executed it. Though I cannot say that the District Judge''s findings are quite statisfactory, the learned Judge was entitled to come
to those findings of fact on the evidence before him and we cannot interfere with those findings of fact in second appeal. On three other questions
arising in the execution appeal No. 891 of 1910 before him the learned District Judge held in favour of plaintiffs Nos. 4 and 5. His conclusions on
those questions are (a) that the compromise petition Exhibit IV filed in A.S. No. 83 of 08 did not nullify the decree in O.S. No. 25 of 1906 as the
District Court did not sanction the compromise on behalf of the minors (plaintiffs Nos. 4 and 5), (b) that the decree in O.S. No. 25 of 06 was, on
the other hand, affirmed by the District court by the decision in A.S. No. 82 of 08 in the appeal connected with which (A.S. No. 83 of 08.) the
compromise petition, exhibit IV, was filed and that, therefore, the decree in O.S. No. 25 of 06 has remained in full force even after that
compromise petition, and (c) that the decree of the Subordinate Judge which was so affirmed could not be treated as satisfied as there was no
petition recorded satisfying the decree"" and no "" satisfaction certified within ninety days "" of the Karar, Exhibit I, under Article 174 of the Limitation
Act and Order 21 Rule 2 of the CPC (old Section 258). See paragraph No. 2 of the learned District Judge''s decision in (A.S. No. 891 of 1910).
As regards still another fourth question whether the Karar, Exhibit I, was beneficial to the minors or was entered into in fraud of the minors, the
learned District Judge held that it was unnecessary to give any finding. Having thus decided the 1st three questions in favour of the plain-tiffs and
also decided on the preliminary question that the Sammatha pathram, Exhibit A. was not binding on plaintiffs Nos. 4 and 5, the learned District
Judge reversed the order of the Subordinate Judge whjch dismissed the execution application of the plaintiffs Nos. 4 and 5 and the learned District
Judge allowed execution as prayed for. Before us, the appellants contended (1) that the petition Ex-hibit IV, filed in the District court in A.S. No.
83 of 08 should be taken as a certificate of satisfaction filed in O.S. No. 25 of 05 by the plaintiffs. (2) that the decree in O.S. No, 25 of 03 was set
aside by the compromise petition Exhibit IV and a new decree in terms of the compromise was substituted for that decree in appeal,(3) that the
compromise under Karars Exhibits I and II was binding on the plaintiffs even without the Court''s sanction, (8) that Order 21 Rule 2 (O.C.S. 258)
did not apply to the relief of possession of immovables given by a decree and no certificate of satisfaction under that section was therefore required
as regards that relief, and (5) that therefore in any event, so far as regards the appellants'' contention that the plaintiff''s Thavazhi had been given
possession of the lands at the time of Ex. I, II and IV, the lower court ought to have given a finding after allowing the appellants to give evidence
therein, that question being one u/s 244 old code (47 of the New Code) and not one falling u/s 258 (old code) (Order XXI N.C).
I shall take these 5 contentions in order. The first contention is that Exhibit IV should be taken as a certificate of satisfaction filed in O.S. No. 25
of 1906. It is to be remarked that according to the old CPC Section 258 and also, according to Order 21 Rule 2 of the new Civil Procedure
Code, the certificate of payment of adjustment should be filed in the court whose duty it is to execute the decree. Exhibit IV in this Case was filed,
not in the subordinate Judge''s Court of Palghat whose duty it was to execute the decree in O.S. No. 25 of 1906, but it was filed in the District
Court of South Malabar at Calicut. Further, it was not filed even in the District Court of South Malabar in the A.S. No. 82 of 08, which was the
appeal filed against the decree in O.S. No. 25 of 1906 but in a connected appeal No. 83 of 1908. Again, this difficult to hold that the filing of a
compromise petition u/s 375 (old Civil Procedure Code) might be treated as the filing of the certificate of satisfaction u/s 258. Even if it could be so
held and even if the filing of the petition in A.S. No. 83 of 1908 be treated as equivalent to its being filed in A.S. No. 82 of 1908, it seems to me
impossible to hold that the filing of a certificate of satisfaction in the wrong court and the getting of an order ""Recorded"" from the wrong court could
be treated as legally valid. The Court whose duty it was to execute the decree in O.S. No. 25 of 1908 was the subordinate Judge''s Court of
Palghat and not the District Court of South Malabar at Calicut. I express no opinion as to whether the District Court of Calicut has the power to
execute that decree, but I am clear that it was not the court whose duty it was to execute the decree. Reliance is placed by the appellant''s learned
Vakil on the case of Birod Gosain v. Jainwati Koer (1912) 16. C. L. J. 174 where it was held that the filing of a compromise petition in the
appellate Court might be treated as the filing of a certificate of satisfaction in the Court of first instance. With the greatest respect I find myself
unable to follow that decision.
The second contention is that, though the District Court of Calicut, when the compromise petition, Exhibit IV, was filed before it merely
recorded it and did not pass a decree in accordance with its terms, still it should be held to have passed such a decree superseding the decree
passed by the Palghat Subordinate Judge in O.S. No. 25 of 1908. I think that this contention also must be rejected. Exhibit IV does not pray the
District Court to pass a new decree in terms of the compromise superseding the decree of the Palghat Sub Court; on the other hand, it prays for an
order that the appeal No. 82 of 1908 be struck off the file of the District Court as with-drawn. The District Court dismissed the appeal accordingly
by a separate order, separate from the order which recorded the petition. It seems to me impossible to hold that by the mere filing of a com-
promise petition Exhibit IV, the Subordinate Judge''s decree in O.S. No. 25 of 1906 was superseded by a fresh decree or was set aside by the
compromise petition itself.
8.The third contention is that the family Karars Exhibit 1 dated the 8th May 1908 and Exhibit II, which were entered into between the members of
the Tarwad, are binding on the Plaintiff''s Nos. 4 and 5 even without the Court''s sanction and that by those karars the decree in O.S. No. 25 of
1906 was satisfied. Before considering the question as to whether the terms '' of these alleged family arrangements could be treated as a legal
satisfaction of the reliefs awarded by the decree, the court has to decide first whether the compromise was a bona fide compromise. That question
has not been gone into by the Lower Courts. If it is found on evidence that Exhibits I and II are bona fide compromises binding on all the members
of the tarwad including plaintiffs Nos. 4 and 5, the next question will be whether they could legally operate as a satisfaction of all he reliefs or only
of some of the reliefs given by the decree in O.S. No. 25 of 06. Reserving then this third contention, I shall pass on to the fourth.
The fourth contention is that Order XXI Rule 2 (O.C.S. 258) did not apply to the relief of possession of immovables given by the decree and no
certificate of satisfaction under that section was required and that therefore the lower Court ought to have taken evidence as to whether possession
was really given to the plaintiff''s Thavazhi of the plaint lands in 1908. If the decree in O.S.No. 25 of 06 does not prohibit the major plaintiffs from
taking possession from the defendants and does not prohibit the defendants from giving possession of the decreed lands to the major plaintiffs on
behalf of the plaintiff''s Thavazhi, except under certain conditions, there can be no doubt that the above contention must be given effect to. In
Sankaran Nambiar v. Kanara Kurup ILR (1898) M. 182 it was held that Section 258 of the CPC refers only to the execution of the decrees
under which money is payable and is not applicable to decrees for possession of Immovable property and that u/s 244 the Court has general
authority to make orders determining the questions which arise between the parties to the suit and relating to the satis-faction of the decree.
Though, as regards mortgage decrees, there was a conflict of decisions as to whether payments in satisfaction should be certified or not before the
executing court could recognise them (even that question was set at rest for Madras by Vaidya Nadhaswami v. Somasundararn FilialI.L.R. (l904)
M.473 that question was also set at rest for the whole of India by the change of language introduced by Order XXI Rule 2. The decision in I.L.R
22 M. 182 in which it was held that so far as the decree was one for possession of immo-veables, the question whether satisfaction of the decreed
relief had been given out of court to the decree holder can be gone into u/s 244 notwithstanding the absence of a certificate of satisfaction, has not
been dissented from in any later case. As the defendants in this case have raised the plea that they did give possession to plain-tiff''s Thavazhi of the
lands in the year 1908 itself and as if they could be allowed to prove such delivery of possesion, the plaintiffs Nos. 4 and 5 cannot claim mesne
profits under the decree for the years from the date of such delivery of possession, it would have been necessary before disposing of this appeal to
obtain a finding from. the Lower appellate Court on the question whether and when the property, possession of which was decreed to the
plaintiff''s Thavazhi by the decree in O.S. No. 25 of 06, was given to the plaintiff''s Thavazhi if (as I said before) the decree in O.S. No. 25 of 06
permitted the major plaintiffs to obtain possession of the decreed lands without the sanction or intervention of the Court. We are asked by the
appellant''s learned Vakil to ask the lower Courts to submit findings on the question above referred to and on the other question whether the
Karars I and II are binding on the plaintiffs'' Thavazhi and on plaintiffs Nos. 4 and 5, but I think that such findings are unnecessary for the disposal
of this execution appeal. As regards the family Karars I and II, those Karars, if valid as an adjustment of the decree, are not binding in execution as
an adjustment of that portion of the decree which directs payments of moneys, as such adjustment was not certified u/s 258 (O.C.) and cannot by
the executing Court be recognised so far as the payment of money due under the decree is concerned.
Even as regards the relief for delivery of possession of lands, given by the decree I find on a perusal of the decree in O.S. No 25 of 06, that
the Subordinate Judge''s court of Palghat gave the following express direction in that decree. "" It is further ordered and decreed that plaintiffs 1, 2
and 6 shall not take out execution unless they furnish good security to protect the interest of the minors"" i.e. (plaintiffs Nos. 3,4 and 5 in the case).
This direction in the decree must also be held to have remained in force as the District Court of Calicut dismissed the appeal No. 82 of 08 wholly.
If plaintiffs Nos. 1, 2 and 6 are not entitled to take out execution even for delivery of possession of Immovable property without furnishing good
security to protect the interest of the minor plaintiff, (and this direction given in the interest of the minor plaintiff must have been known to the
defendants and is clearly on them also), I think that any possession given to the major plaintiff on behalf of the plaintiff''s. Thavazhi without their
having so furnished security must be deemed by the executing Court to be wholly invalid as contravening the express directions of the decree and
as a fraud on the minor plaintiff. In the result, I think we must dismiss this appeal. I may be permitted to express my surprise at the very slipshod
manner in which the parties and their several legal advisers in the lower Courts have acted from May 08 in the several proceedings which took
place in the lower Courts. In view of that circumstance which has introduced almost hopeless complications and perplexities in the execution
proceedings, I would make no order as to costs of this appeal.
Spencer, J.
I concur.