Thakoor Dyal Singh and Others Vs Sarju Pershad Misser and Another

Prinsep and Banerjee, JJ.@mdashWe think that this case is concluded by the judgment of their Lordships of the Privy Council in Sadasiva Pillai v. Ramalinga Pillai 15 B.L.R. 383 : 24 W.R. 193 . The agreement entered into between the parties is not on the record before us, but it has been found by the first Court, and this finding has not been questioned in any further proceedings taken in the case, that the parties intended by the agreement arrived at that the higher rate of interest should be recovered in execution of a decree, that is to say, in the present case that in consideration of abstaining from bringing the properties attached to sale, the judgment-debtors agreed to pay to the decree-holder interest at the rate of 12 per cent, per annum from the date of the decree, instead of 6 per cent,, the rate allowed by the decree, and also the parties intended that the money recoverable under this agreement, that is to say, the sum due on calculation of the interest at the higher rate, should be recovered in execution of the decree. Their Lordships of the Privy Council in the case referred to held, on the authority of Bisani v. The Attorney-General for Gibraltar L.R. 5 P.C. 516, that the parties should be held to the agreement that the questions between them should be heard and determined by proceedings quite contrary to the ordinary cursus curiae; that is to say, applying this to the case before us, that the parties having come to an agreement which received the sanction of the Court of execution u/s 257 (a), Civil Procedure Code, that the money due under that agreement should be realized as in execution of decree rather than by recourse to a separate suit, the execution Court is competent to realize the money on the application of the judgment-creditor in the manner agreed upon, the Court which would try the regular suit brought upon such an agreement being the same Court which would execute the decree to enforce its terms. The appeal must therefore be dismissed with costs.