JUDGMENT
1. This is an appeal by defendants 1 to 5 in a suit for permanent injunction in the matter of execution of a decree in a suit for rent, (Rent Suit No. 2 of 1927, in the First Court of the Subordinate Judge at Dacca), on the ground that there was a contract between the plaintiff and the contesting defendants, before the decree was passed in the suit, that the decree was not to be executed against the plaintiff if he withdrew from the contest of the suit in which the decree was passed; the plaintiffs, case before the Court was that he did withdraw from contest, and suffered the decree to be passed in view of the contract. The plaintiff set up another agreement between the parties to the rent suit, in the nature of adjustment of the decree which was passed in the suit. As indicated already, the prayer made by the plaintiff in the suit in which the appeal has arisen, was in view of the two different agreements between the parties concerned, one for a permanent injunction, so that the decree passed in the suit for rent might not be allowed to be executed against him. The claim made by the plaintiff in the suit was resisted by the contesting defendants, the appellants’ in this Court. The contract alleged by the plaintiff as to arrangement not to execute the decree prior to the passing of the decree, as also the subsequent adjustment of the decree were denied; and it was asserted by the defendants that there was waiver on the part of the plaintiff, inasmuch as in the proceedings for execution of the decree for rent, the plaintiff took time on seven occasions, and made payments, waiving fresh sale proclamations and admitting service of process in execution. On the pleadings of the parties, three distinct issues were raised for determination in the suit, on the points raised before us, in support of the appeal: 1. Was there any agreement that the father of defendants 1 to 5 would not execute the decree as against, the plaintiff? 2. Has the ante-decretal agreement been superseded by any subsequent adjustment? 3. Is the suit barred by estoppel, waiver and acquiescence?
2. The Courts below have agreed in deciding all the above points in favour of the plaintiff in the suit. Defendants 1 to 5 have appealed to this Court, The first ground taken in this appeal is that the Courts below should have held that the decree in the suit for rent having been passed against the plaintiff and in his presence, it was a valid and binding decree so far as he was concerned; and it was not competent to the plaintiff so long as that decree stands to obtain a permanent injunction preventing the defendants from executing the decree; and reliance was placed on the decision in Benode Lal Pakrashi v. Brojendra Kumar Saha (1902) 29 Cal 810 in support of the arguments advanced in this behalf, in which it was laid down that a decree once made, it must be taken to-be conclusive between the parties; an agreement alleged to have been come to between the parties before the decree was made could not be given effect to. The decision aforesaid was given in an appeal to this Court arising out of proceedings in execution, and as it has been pointed out by Rankin, C.J., Ramchandra Debnath v. Brojendra Kumar 1930 Cal 356 the decision in Benode Lal Pakrashi v. Brojendra Kumar Saha (1902) 29 Cal 810 mentioned above laid down a sound proposition of law, inasmuch as a case of an agreement anterior to the passing of a decree could not be allowed to be set up in a proceeding for execution of a decree. There was not and there could not however be any bar to a party asking for relief by way of an injunction to restrain the decree-holder from putting, in execution the decree, if the decree-holders committed a breach of their obligation under an anterior agreement. This was clearly laid down by the learned Chief Justice in his judgment in Ramchandra Debnath v. Brojendra Kumar 1930 Cal 356 referred to above; and no principle nor authority has been cited before us which could possibly enable us to consider the propriety of the decision in that case. In our judgment the plaintiff was entitled to bring a suit of the nature which is before us now, in which the relief prayed was one for an injunction to restrain defendants 1 to 5 from putting in execution a decree obtained by them, in view of an agreement entered in to by the parties concerned, anterior to the passing of the decree. 1
3. The point next argued in support of the appeal is the one relating to the adjustment subsequent to the passing of the decree for rent, described as a second agreement, which must, according to the defendants appellants, be taken to have superseded the first agreement come to anterior to the passing of the decree. On this part of the case, the Courts below have arrived at findings on evidence, which is in accordance with the case of the contesting defendants in the suit, the appellants in this Court. The plaintiff, according to the ‘Court below,, failed to establish the adjustment of the decree set up by him; and this decision on evidence must be treated as conclusive in the appeal before us. There was no adjustment after the decree, or any second agreement as set up by the plaintiff and there was no question of second agreement having superseded the agreement anterior to the passing of the decree.
4. It has to be considered next, whether if the anterior agreement was to be allowed to operate, as it must operate, in favour of the plaintiff in the suit and enable him to get the relief he prayed for in the suit, namely a perpetual injunction preventing defendants 1 to5 from executing the decree for rent,, unless there was any legal bar to the same. The anterior agreement has been found to have been established on evidence, by both the Courts below, and that agreement was not superseded by any subsequent agreement or adjustment after decree. On these conclusions the plaintiff was entitled to get the relief he sought in the suit, unless there was any waiver on his part, as indicated by the third issue referred to in a previous, part of this judgment, namely whether the suit was barred by estoppel, waiver and acquiescence? The Courts below have on the materials before them, come to the conclusion on evidence that there was no waiver or acquiescence on the part of the plaintiff. The question was., whether the plaintiff had waived his right to bring an action’ of the present, description and have a permanent injunction restraining the defendants appellants, as he was alleged to have waived his rights under the agreement anterior to the passing of the decree in the suit for rent, by taking several adjournments and making several payments in the course of the proceedings in execution of the decree. The facts that adjournments were taken in the matter of the impending sale in execution of the decree, and payments were made by the plaintiff for averting the sale, are not in dispute. There were seven applications before the executing Court; and in one of them it was expressly mentioned that the judgment-debtor did not waive his right to establish that the decree-holders were not entitled to execute the decree against him. On the materials before the Court it is not possible for us to refuse to accept the finding arrived at by the Courts below that in the circumstances of the case, adjournments were taken and payments made under protest and there was there ‘fore no waiver or acquiescence.
5. It is to be noticed on the above question of waiver, the decision in Conventry v. Tulsi Prosad Narain Singh (1904) 31 Cal 822 was relied upon on the side of the appellant, in support of the position that the plaintiff in the suit, the respondent in this Court, having successfully obtained stay of sale from Court on the plea that he would satisfy the decree, if time were allowed, and having approbated the execution proceedings by paying the decree-holder a part of the debt, and thus inducing him to consent to time being granted for the payment of the balance, could not be permitted by the principle of estoppel to say that the decree was incapable of execution against him. The decision in Conventry v. Tulsi Prosad Narain Singh (1904) 31 Cal 822 mentioned above, was given by this Court on the facts and circumstances in that case, in which the principle of estoppel by conduct was clearly applicable in the case before us, we are unable to held as a matter of law, that there was estoppel operating against the plaintiff respondent. In our judgment, it further appears to be beyond question that the payments made by the plaintiff in execution proceedings to arrest an impending sale were involuntary. They were made to prevent sales which would otherwise have inevitably taken place, and as such payments were made under compulsion of law. The payments made by the plaintiff-respondent in the course of execution proceedings, could not amount to waiver of his rights in the matter of having the relief now sought in the suit in which the appeal has arisen: (See in this connexion the observation of their Lordships of the Judicial Committee in Doolichand v. Ram Kissen Singh (1982) 7 Cal 648, Kanhya Lal v. National Bank of India (1913) 40 Cal 598. On the question of waiver on the part of the plaintiff, as raised before us our decision is that the findings arrived at on evidence by the Courts below must be accepted, and further, that as a matter of law there was no waiver of his rights sought to be enforced in the present action by virtue of payment made by the plaintiff, which must be taken to be involuntary, and made under compulsion of law. The result of the conclusions we have arrived at as indicated above, is that the appeal fails, and is dismissed with costs.
