The main legal point established in the judgment is the invalidity of oral agreements modifying decree terms under Section 92 of the Evidence Act and the prohibition of execution against impartible properties under Section 6 of Act II of 1904.

Odgers, J.

1. This is an appeal against the order of the Subordinate Judge of Chittoor ordering an execution to proceed. The appellant is the 30th defendant in the case. The 1st defendant died and the 30th defendant was brought in as the legal representative of the 1st defendant, the Rajah of Kalahasti. The suit was to recover money paid by the plaintiff on behalf of the defendants for cess, peishcush, etc. The plaintiff owns two villages in the zamindari and obtained a decree in the suit which makes the defendants jointly and severally liable, and not only directs recovery by the sale of the assets of the late 1st defendant in the hands of the 30th defendant but it is also said that in a portion of the decree, not printed, certain villages now held by the 30th defendant are ordered to be sold to satisfy the decree. The first thing to be noticed is that there has been no appeal and the reason that is given to us for that is this. 30th defendant wanted to appeal, but the plaintiff assured him orally that proceedings would be taken against him only in respect of his proportionate liability. So the question has arisen whether this is an adjustment of the decree out of Court under Order 21, Rule 2, and further whether the oral agreement is inconsistent with the decree. A further point is raised by Mr. L. A. Govindaraghava Aiyar for the appellant, and that is, that under the Impartible Estates Act (and it is not disputed, the estate of the 30th defendant is such an estate) it cannot be sold without the consent of the Collector and that the decree in so far as it asks for such a sale is void. The 30th defendant put in a defence in his character as legal representative and contended that he was not personally responsible, that he had succeeded to the impartible estate, that the plaintiff was not entitled to the first charge on the villages in the B Schedule or the jodi right of agraharam in C Schedule, that the liability of the 1st defendant to the plaintiff for non-payment of peishcush is one which cannot be enforced against this defendant or against any portion of the estate of Kalahasti which may have devolved on him by succession. The 9th issue raises the question which of the defendants, if any, and to what extent they, are liable, and whether the defendants or any of them are personally liable. The Subordinate Judge found that the plaintiff was entitled to recover from the 30th defendant the decretal amount from the assets of the 1st defendant in his hands and as the peishcush is the first charge on the zamindari the plaintiff was entitled to enforce this charge against the villages in the possession of the 30th defendant and on his jodi right over the villages in the plaint C Schedule and the villages in A, B and D Schedules which have not been separately registered and the proportionate peishcush unascertained.

2. On the matter coming before the Subordinate Judge he decided that it was not a plea of adjustment under Order 21, Rule 2 and that if it were, it would be barred by the limitation of 90 days. The Subordinate Judge, however, based his finding on his view that an agreement of this sort cannot be proved as it is not only contrary to the provisions of Section 92 of the Evidence Act but against the policy of the Civil Procedure Code. Any order for adjustment to be valid must comply with the requirements of Order 21, Rule 2; that is to say, the decree-holder must certify the adjustment and the same must be recorded by the Court. If it has not been certified or recorded as aforesaid, it shall not be recognised by any Court executing the decree. Whether Or not there has been an adjustment here within the meaning of the rule, it is perfectly clear that it has not been certified to the Court. The learned vakil for the appellant urges that the case ought to be sent down to the Subordinate Judge to find as to the truth or otherwise of the fact of the adjustment. Adjustment is said in Venkataswami v. Kotilingam (1925) 49 ML