Straight and Brodhurst, JJ.:— It is obvious that this latter plea must be dealt with first, and in reference to it we may remark that there are two decisions of this Court—Sita Ram v. Mahipal —Shadi v. Ganga Bahai —directly in point, which lay down that the expression “any Court” in s. 358 has reference to Courts executing decrees, and not to a Court entertaining a separate suit. In the present instance the plaintiff, on the basis of the sale-deed, asserts his title to the fields and is not by the defendants Amin Chand and Kashmiri with the decree of, 1879. As between Daulat Singh and them, the adjustment subsequently made could not of course be recognized in any execution proceedings under s. 244 of the Code, but as between themselves and the plaintiff it is impossible to understand how or why the latter should be debarred from showing that the lien the former assort has either been abandoned, or has been discharged as effectually as if it had been satisfied by a cash payment of the judgment-debt. We think, therefore, that the Judge took an erroneous view in holding himself prohibited by s. 258 from considering the question as to the alleged adjustment of the decree of 1879, and the case must go back under s. 566 for a finding on the following issue:—At the time the agreement was entered into between Daulat Singh and the defendants. Amin Chand and Kashmiri, as to the transfer of the villages of Dhawa and Gujrara, was in the intention of the parties that the decree of 1879 should be superseded by such new arrangement; and was such agreement regarded by them at that time as an adjustment of that decree?
In determining this issue the Judge may advantageously peruse some remarks of this Court at page 696 of the third volume of the Allahabad Series, Indian Law Reports, as showing the principal to be applied in the matter of mortgage, with may guide him in determining the question of intention in this case.