JUDGMENT Biswas, J. - This is an appeal on behalf of the plaintiffs in a suit in which they asked for a declaration that their interest in certain properties was not affected by an execution sale (in Money Execution Case No. 1430 of 1935) on the ground that the sale had been held in breach of an agreement on the part of the decree-holders not to execute the decree. The plaintiffs also prayed, in the alternative, for damages for breach of the agreement. The trial Court dismissed the claim on either head, while on appeal the lower appellate Court dismissed the suit against the auction purchaser, defendant 7, but granted a decree for damages against the decree-holders, defendants 1 to 6, in the sum of Rs. 100. In the present appeal the plaintiffs have questioned the competency of the sale as well as the sufficiency of the damages allowed. 2. The material facts may be shortly stated. On 2lst December 1925, defendants 1 to 3 (whose interest is now represented by defendants 1 to 6) obtained a money decree against the plaintiffs in Money suit No. 916 of 1924 in the Court of the First Munsif of 24 Parganas. There was an appeal, and while the appeal was pending, a solenama was entered into and filed in another suit which was then pending between the parties, Title Suit No. 194 of 1922, before the Fourth Subordinate Judge at Alipore. By this solenama it was agreed, inter alia, that the defendants would give up their claim in the money suit and not execute the decree they had obtained, and that the plaintiffs in their turn would withdraw their appeal against the decree. In due course a decree followed on the solenama. The plaintiffs afterwards instituted a suit for setting aside the solenama decree (Title suit No. 154 of 1929), and in repudiation of the solenama, they also carried on their appeal m the money suit. Both these proceedings ultimately failed. In due course a decree followed on the solenama. The plaintiffs afterwards instituted a suit for setting aside the solenama decree (Title suit No. 154 of 1929), and in repudiation of the solenama, they also carried on their appeal m the money suit. Both these proceedings ultimately failed. The suit for setting abide the solenama decree was dismissed by the trial Court on 22nd April 1930, and this was finally affirmed in second appeal by this Court some time in 1933 As regards the appeal in the money suit, this was also dismissed on 10th May 1927, there was thereafter an application in revision to this Court, which ordered are trial, but on re-trial the decree as originally made was restored on 29th June 1929, and an appeal from the decree was also dismissed in April 1930 The decree was then put into execution in Money Execution case No. 1436 of 1935, and a sale held there under on 7th December 1935, at which defendant 7 became the auction purchaser. It is this sale which is the subject-matter of the present suit, and the main contention of the plaintiffs is that the solenama was a bar to the execution proceeding which resulted in the sale. 3. The lower appellate Court has held, and it is not now disputed, that the solenama decree on being finally upheld by this Court in second appeal became effective between the parties, so as to be operative on the decree in the money suit as made after re trial That being so the plaintiffs might no doubt maintain that in view of the clear stipulation in the solenama it was not competent to the defendants to execute the money decree and sell the plaintiffs' properties in such execution. In point of fact, it appears that shortly after the sale the plaintiffs applied under O. 21, R. 90, Civil P.C., for setting aside the sale on the usual allegations of fraud and material irregularity, and in the application they raised this specific objection under S. 47 to the competency of the sale. The application was dismissed on 27th July 1936 The Court found that there was no fraud or irregularity in publishing or conducting the sale, the sale processes had been all duly served, and the sale was otherwise valid. The application was dismissed on 27th July 1936 The Court found that there was no fraud or irregularity in publishing or conducting the sale, the sale processes had been all duly served, and the sale was otherwise valid. As regards the effect of the solenama, the learned Munsif observed as follows: I do not see how this decree should be the subject of a compromise which was arrived at 3 years earlier. This decree obviously had no existence at that time. In saying this, the learned Munsif evidently went by the original date of the solenama (24th March 1926) and the date (29th June 1929) on which the money suit was decreed on re-trial. Whether this was a correct view to take or not, the fact remains that the plaintiffs' objection to the execution on the ground of the solenama was negatived. 4. The same objection has now been renewed by the plaintiffs in the present suit, and to this the defendants raise a two-fold plea in bar, which has been given effect to by both the Courts below It has been held, in the first place, that the question raised in the suit is one under S. 47, Civil P.C., and the suit it consequently not maintainable, and secondly that it is also barred by res judicata by reason of the previous decision in the proceeding for setting aside the sale. Both these grounds are strenuously contested by the learned advocate for the appellant. Whether the law is on the side of his clients or not, it hardly admits of doubt that their conduct has very little of merit in it. Having themselves moved the Court under S. 47 of the Code and invited a decision on their application, it is not for them now to turn round and say, because the decision went against them, that neither were they competent so to have moved the Court, nor was it competent for the Court to have dealt with the matter on being so moved. And yet this is the position which they must take up in order to sustain their present contentions. These contentions may be now examined. 5. And yet this is the position which they must take up in order to sustain their present contentions. These contentions may be now examined. 5. First, as to the bar under S. 47, Civil P.C. This section provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit Prima facie it is difficult to see why such a question, as it sought to be raised by the plaintiffs in this case, affecting the decree-holders' right to maintain the execution, should not be regarded as coming within the terms of the section The validity of the decree is not challenged, but it is merely urged, treating the decree as one which was validly passed and would be susceptible of execution in the ordinary course, that by a voluntary agreement on their part the decree-holders had disentitled themselves to realise it by execution. It seems to me that this is pre-eminently a matter for the executing Court to deal with. The ordinary rule no doubt is that the executing Court cannot go behind the decree, in other words, it must accept the decree as it stands, but even so, it has been held by the Full Bench in ('25) 12 Gora Chand Haldar and Another Vs. Prafulla Kumar Roy and Others, AIR 1925 Cal 907 , Gora Chand Halder v. Prafulla Kumar Roy, that where a decree is challenged as being without jurisdiction the executing Court may go into the question and refuse to execute the decree, if it finds that it was really without jurisdiction. Reference may also be made to another Full Bench decision, ('29) 16 Taleb Ali and Another Vs. Abdul Aziz and Others, AIR 1929 Cal 689 , Talebali v. Abdul Aziz, in which it has been held that where an application is made for execution of a final decree after the preliminary decree has been reversed on appeal, it is competent to the executing Court to refuse execution on the ground that the decree having been superseded as a result of the appeal, it is no longer valid and operative. In the present case it is not necessary to stretch the rule to this extent, inasmuch as the decree itself is not impugned as a nullity or attacked on any other ground tending to destroy its every existence, but all that is said is that by reason of certain circumstances extraneous to the decree, and not impinging in any way upon its validity or operative character, its enforcement has been suspended. As I have said, I can find no reason for holding that this is not a matter which may legitimately come within the purview of the executing Court under S. 47 of the Code. 6. The learned advocate for the appellant referred me to certain cases in which it has been held that where the judgment debtor objects to the execution on the ground that prior to the passing of the decree, the decree-holder agreed not to execute it, the question is one which could not be determined by the executing Court under S. 47. Amongst others, reliance was placed on ('04) 31 Cal 179, Hasan Ali v. Gauzi Ali Mir, which followed the earlier cases in ('02) 29 Cal 810 : 6 C.W.N. 838, Benode Lal Pakrashi v. Brajendra Kumar Saha and ('02) 6 C.W.N. 796, Chhoti Narain Singh v. Mt. Rameshwar Koer. These were all cases of pre-decree agreements, and if I have been able to follow the ratio decidendi in these cases aright, it was that the question which fell to be determined was whether or not by reason of the agreement there could at all be a decree in the form in which it had been actually made. That is an entirely different question from what has to be considered in the present case. This is a case of a post decree agreement, and even if it be supposed that on principle there should be no difference between a pre-decree agreement, and a post-decree agreement, it is still to be observed that the agreement here does not purport in any way to affect the character or form of the decree. This is a case of a post decree agreement, and even if it be supposed that on principle there should be no difference between a pre-decree agreement, and a post-decree agreement, it is still to be observed that the agreement here does not purport in any way to affect the character or form of the decree. I do not suggest that a post-decree agreement may not in any circumstances be excluded from the purview of the executing Court under s. 47, but whether this will or will not be so will depend upon the nature of the agreement If a post decree agreement seeks to affect the character of the decree, it may no doubt be said that this is a question which could be raised only by an independent suit, and not by an application under S. 47 As I have already pointed out, I do not think that the agreement in this case may be regarded as having any such effect on the decree In my view, it leaves the decree untouched, and merely seeks to restrain its execution, and it is, therefore, just one of the matters which it is peculiarly within the province of the executing Court to consider and determine The learned advocate drew my attention in this connexion to the observations of the Judicial Committee in the recent case in ('39) 26 AIR 1939 80 (Privy Council) . The passage on which he relied is at page 102 of the report: If it appears to the Court, acting under S. 47, that the true effect of the agreement was to discharge the decree forthwith in consideration of certain promises by the debtor, then no doubt the Court will not have occasion to enforce the agreement in execution proceedings, but will leave the creditor to bring a separate suit upon the contract If, on the other hand, the agreement is intended to govern the liability of the debtor under the decree and to have effect upon the time or manner of us enforcement, it is a matter to be dealt with under S. 47 In such a case to say that the creditor may perhaps have a separate suit is to misread the Code, winch by requiring all such matters to be dealt with in execution discloses a broader view of the scope and functions of an executing Court. I do not see how these observations assist the appellants in any way. On the contrary, their Lordships state quite clearly that where the agreement is intended to govern the liability of the debtor under the decree and to have effect upon the time or manner of its enforcement, the matter is to be dealt with under S. 47 Even in the earlier part of the passage where their Lordships say that the creditor may be left to bring a separate suit upon the contract, they point out that if it appears to the executing Court that the true effect of the agreement is to discharge the decree forthwith, the Court will have no occasion to enforce the agreement in execution proceedings, meaning thereby that while it will he open to the executing Court to take notice of the agreement for the purpose of refusing execution, the decree-holder will be relegated to a separate suit if and in so far as he wishes to enforce any promises made by the debtor in or as consideration for the agreement. Where the agreement amounts to an adjustment of the decree, it is a different question whether or not the executing Court may take notice of it unless the adjustment is recorded under O. 21, R. 2 but their Lordships do not appear to be in any doubt that subject to that, the matter will fall to be determined by the executing Court. In the case before the Judicial Committee the agreement was a bargain for time in consideration of a higher rate of interest, and it was held to be an agreement having effect upon the parties' rights under the decree, which it was within the jurisdiction of she executing Court under S. 47 to recognise and act upon. It may be that the agreement here is not one giving time to the judgment-debtors, but exonerating them altogether from liability under the decree, but this is a circumstance which in ray opinion makes no difference, in that the agreement still remains an agreement upon terms which, in the words of their Lordships in another part of the judgment, have reference to and affect the execution, discharge or satisfaction of the decree. There is no reason, therefore, why it cannot be dealt with under S. 47. There is no reason, therefore, why it cannot be dealt with under S. 47. There is no question in the present case of any attempt by the decree-holders to enforce in execution any liability under the agreement extraneous to the decree or to the suit in which the decree was passed, for which a separate suit might have been necessary. In my opinion, therefore, the first point raised by the appellants must be overruled, and I must hold that s. 47 of the Code is a bar to the present suit. 7. The appellants' second contention in answer to the plea of res judicata must equally fail. The whole basis of the argument on this part of the case is that the executing Court had no jurisdiction to go into the question as to the effect of the solenama on the decree-holders' right to execute the decree, and that any adjudication by that Court on that question could not consequently operate as res judicata. As, however, I have shown above, this was a matter which it was not only within the competence, but also within the exclusive jurisdiction, of the executing Court to deal with under S. 47. In particular, it may be added that having regard to the form in which the question had been raised in the executing Court, the learned advocate, on his attention being drawn to it, had himself to concede jurisdiction. The issue in that Court was in this form: "Is the story of adjustment of the decree by solenama true, if so, is the execution case at all maintainable?" The answer which the Court gave to the question was in the negative. Whether that was a correct answer or not is immaterial: it remains a fact that the question had been raised and decided against the appellants, and I see no reason why they should be allowed to re-agitate the same question in the present suit. 8. The result is that in so far as the plaintiffs seek to challenge the competency of the sale on the ground that it was held in breach of the terms of the solenama, the suit must be held to be not maintainable. Their claim to damages for breach of the solenama obviously stands on a different footing, and this was not disputed by the respondents. Their claim to damages for breach of the solenama obviously stands on a different footing, and this was not disputed by the respondents. It is necessary, therefore, to consider the appellants' objection regarding the quantum of damages awarded. The learned Subordinate Judge allowed a sum of Rs. 100 only, that being the price of the property fetched at the execution sale. It may be conceded that this is not necessarily a correct measure of the damages which may be claimed by a judgment-debtor for wrongful sale of his properties by the decree-holder despite a binding agreement to the contrary. But in assessing damages the Court is undoubtedly entitled to take into consideration the conduct of the parties. It is quite true that the decree-holders here in putting the decree into execution acted in violation of their undertaking not to execute it, but the plaintiffs on their part were the first to repudiate the agreement. Contrary to the terms of the solenama they prosecuted their appeal in the money suit, and then instituted a suit for setting aside the solenama decree. It was certainly not due to them that both the appeal and the suit ultimately failed, and though as a result, as was held by this Court in second appeal, the parties were restored to their original position under the solenama, and the appellants could consequently claim the benefit of it in an appropriate proceeding, it does not follow that in a suit for damages for breach of the agreement, their own conduct should be left out of consideration altogether, not for the purpose of disallowing damages, but for assessing the amount thereof, In the circumstances of the case, I see no reason for modifying the sum allowed by the Court below in this behalf. 9. For the reasons aforesaid, I must affirm the judgment and decree of the learned Subordinate Judge and dismiss the appeal with costs.