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Madras High Court
Mahomed Mahomed Khan Bahadur vs Mahomed Munawar Sahib on 5 May, 1908
Equivalent citations: (1908) 18 MLJ 542


1. In this case the 1st defendant, in answer to an application by the transferee decree-holder for execution against him, sets up an agreement entered into between himself, the original decree-holder and the transferee decree-holder, by virtue of which the claims of the original decree-holder were satisfied and the decree was transferred to the transferee for execution against the 2nd defendant only who was no party to the agreement. The Judge of the City Civil Court held that this agreement was an adjustment of the decree within the meaning of Section 258, Civil Procedure Code, and that, as it had not been, certified, it could not be set up in bar of execution.

2. We agree with this decision. Under the section, if a decree is adjusted in whole or in part, the adjustment must be certified, and, unless certified, cannot be recognized. Where there is a money decree against two defendants, an agreement discharging one of them is, in our opinion, an adjustment, in part, of the decree, and so requires to be certified. In Laldas v. Kishardas (1895) I.L.R. 22 B. 463 the agreement set up was come to before decree, and all that was decided was that the existence and validity of such an agreement should be decided in execution under Section 244, Civil Procedure Code. In Krishnamachariar v. Rukmani Ammal (1904) 15 M.L.J. 370 also the agreement referred to was entered into before decree. We are not called upon to consider the effect of such agreements before decree in this case, but when, after decree, an agreement is made discharging some of the defendants, we think such an agreement is clearly an adjustment, in part, of the decree. The appeal is dismissed with costs. The order staying sale in C.M.P. No. 719 of 1908 is discharged.

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