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Dattatraya Nagappa Wagh Vs. Savlo Subrao Bhujle - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 684 of 1929
Judge
Reported inAIR1932Bom237; (1932)34BOMLR404
AppellantDattatraya Nagappa Wagh
RespondentSavlo Subrao Bhujle
DispositionAppeal dismissed
Excerpt:
.....267a, 258-repeal of section 257a-effect of repeal in the dekkhan agriculturists' relief act-civil procedure code (act v of 1909), order xxi, rule 2-satisfaction of decree-sanction of court.; though section 257a of the civil procedure code of 1882 has been expunged from the civil procedure code of 1908, is still survives in section 13, clause (c) of the dekkhan agriculturists' relief act, and its repeal does not affect that section.; trimbak kashiram v. abaji (1911) i.l.r. 35 bom. 307 : s.c. 13 bom. l.r. 508 followed.; under section 257 a, every agreement for the satisfaction of a judgment debt which provides for the payment directly or indirectly of any sum in excess of the sum due under the decree shall be void, unless it is made with the sanction of the court which passed the..........that the mortgage-bond was void as it offended against the provisions of section 257a of the old civil procedure code, and that, therefore, under section 13 of the dekkhan agriculturists'relief act it was open to the defendants to take the plea that the bond was bad. the defendants further contended that the mortgage was not binding at any rate upon some of them who were not parties to the decree.3. the trial court held that the mortgage was not in contravention of section 257 a of the old civil procedure code. it, however, found that defendants nos. s and 6 were not liable under the mortgage. accounts were taken and a sum of rs. 1,770 and odd was found due. a decree was passed for the amount with future interest as provided for in the decree.4. defendants nos. 1, 2, 4 and 5 appealed......
Judgment:

Shingne, J.

1. The plaintiff-appellant got a decree in suit No. 116 of 1921 against defendants Nos. 1, 2 and 4 for Rs. 1,057-8-0 and costs, which amounted to Rs. 142-10-0. The decree provided interest on Rs. 1,000 till realisation at nine per cent. The decretal amount was made payable by instalments. There was a default clause in the decree, which provided that if any two instalments went into arrears the whole amount should be recovered at once. There was a default in payment of two instalments, and the decree-holder pressed his claim against the judgment-debtors and asked the Court which passed the decree to award the whole amount due under the decree by filing adarkhast for that purpose. While the darkhast was pending, the mortgage in suit was passed in favour of the plaintiff by defendants Nos. 1, 2, and 5, and by defendant No. 1 for defendants Nos. 3 and 4 on the strength of a power-of-attorney, and as guardian of defendant No. 6. The mortgage was for a sum of Rs. 1,495, and bore interest at nine per cent, per annum on the whole amount, The present suit was brought by the plaintiff against defendants Nos. 1 to 6 to recover the amount of the mortgage with future interest and costs of the suit. Defendants Nos. 7 and 8 were impleaded as puisne mortgagees.

2. The defence was that the mortgage-bond was void as it offended against the provisions of Section 257A of the old Civil Procedure Code, and that, therefore, under Section 13 of the Dekkhan Agriculturists'Relief Act it was open to the defendants to take the plea that the bond was bad. The defendants further contended that the mortgage was not binding at any rate upon some of them who were not parties to the decree.

3. The trial Court held that the mortgage was not in contravention of Section 257 A of the old Civil Procedure Code. It, however, found that defendants Nos. S and 6 were not liable under the mortgage. Accounts were taken and a sum of Rs. 1,770 and odd was found due. A decree was passed for the amount with future interest as provided for in the decree.

4. Defendants Nos. 1, 2, 4 and 5 appealed. There were cross-objections filed by the plaintiff in respect of interest from the date of suit till the date of the decree. The lower appellate Court held that the bond was void under Section 257 A of the old Civil Procedure Code, and was, therefore, void for the purposes of Section 13 of the Dekkhan Agriculturists' Relief Act. The result was that the suit was dismissed,

5. The plaintiff filed the present second appeal against the decree of the lower appellate Court, and the learned advocate for the plaintiff has taken various points of law, which will be considered in their serial order in this judgment.

6. Before proceeding to consider the points urged by Mr. Rao, I think it should be stated that though Section 257A has been expunged from the Civil Procedure Code, it still survives in Section 13, Clause (c), of the Dekkhan Agriculturists' Relief Act, and it has been held in Trimbak Kashiram v. Abaji I.L.R. (1911) Bom. 307 : 13 Bom. L.R. 508 that the repeal of Section 257A by the Civil Procedure Code of 1908 does not affect Section 13, Clause (c), of the Dekkhan Agriculturists' Relief Act.

7. The first point taken was that Section 257A of the old Civil Procedure Code applied only to agreements giving time for the satisfaction of a judgment-debt or agreements for the satisfaction of a judgment-debt which provided for the payment, directly or indirectly, of any sum in excess of the sum due or to accrue due under a decree, and that Section 257A did not apply to a case where the judgment debt was satisfied as the result of the transaction the validity of which was impeached under Section 257A. To strengthen this point it was further argued that inasmuch as the Court, before whom the execution proceedings were pending, was informed that the decree was satisfied, and the Court recorded in the darkhast-proceedings that the decree was satisfied, the case could not fall under Section 257A. Reference was made to various cases. It is clear to us that the point is covered by the full bench decision in Heera Nema v. Pestonji I.L.R. (1898) Bom. 693 and by the decision in Dhanram v. Ganpat I.L.R. (1902) Bom. 96 : 4 Bom. L.R. 872 In the full bench case referred to above, the plaintiffs had obtained a decree against the defendants for a sum of Rs. 941, The decree was made payable in eight days. On December 9,1889, it was settled by the defendants paying Rs. 600 in cash and passing a promissory note for the balance of Rs. 341 carrying interest at three per cent, per mensem. The decree was handed over to the defendants with an endorsement of satisfaction. This arrangement was not sanctioned by the Court. The plaintiffs subsequently brought a suit on the note, and it was held that the note sued on fell within the purview of Section 257A of the Civil Procedure Code, and was void and unenforceable under the provisions of that section. It was also observed that the consideration for the note was the agreement of the plaintiffs to accept the note in satisfaction of the decretal balance due to them, and if that agreement was void, the note given for that consideration was also void and that the note was not in fact the agreement but was given in performance of the agreement. The learned Chief Justice observed at p. 697 as follows:-

Every adjustment of a decree presupposes an agreement to adjust it, and if the agreement to adjust the decree is void, the adjustment, in so far as it is executory on either side, cannot be enforced, I can see no essential difference between an agreement for the satisfaction of a judgment-debt and an agreement en satisfaction of the same.

8. And at p. 700 Mr. Justice Candy observed as follows :-. it seems to me, on a comparison of the language of Sections 257A and 258, that whereas an adjustment of a decree tinder Section 257A may also fall within the terms of Section 253, an adjustment tinder Section 258 cannot fall within the terms of Section 257A unless it is an agreement which gives time for the satisfaction of the decree, or unless it provides for payment of something in execution of the decretal debt. To the argument of the learned Advocate General, that the bond in the present suit is an adjustment of the decree under Section 258, there is an obvious answer. Granted, but it also falls within theterms of Section 257A. If so, the agreement is void.

9. In Dhanram v. Ganpat we bad a case of a mortgage as in this case. The plaintiff was the holder of a decree against the defendant for Rs. 2,370. On November 28, 1895, the plaintiff advanced to the defendant Rs. 59, and in consideration of this advance and of the amount already due by the defendant to the plaintiff under the decree, the defendant mortgaged certain property to the plaintiff. The mortgage bond provided for payment of interest on the mortgage debt at the rate of ten and a half per cent, per annum. The plaintiff subsequently sued on the mortgage to recover the amount. It was held that the mortgage was void under Section 257A of the Code of Civil Procedure, 1882.

10. The ratio decidendi of these rulings clearly establishes that every agreement for the satisfaction of a judgment debt which provides for the payment directly or indirectly of any sum in excess of the sum due under the decree shall be void, unless it is made with the sanction of the Court which passed the decree,

11. Reference was made to the decision in Tukaram v. Anantbhat I.L.R. (1900) Bom. 252 : 2 Bom. L.R. 1012 but it is clear from the judgment in that case that the case was not one falling under Section 257A, para, 2. At p. 256 of the volume it was stated as follows:-

It is not suggested that the case falls within the second paragraph of the section ; what is urged is, that in respect of the Rs. 308 there is an agreement to give time for the satisfaction of a judgment-debt.

So the decision in that case related to an agreement, which, it was stated, fell under the first clause of Section 257A. Then, Mr. Rao for the appellant referred to a ruling of the Allahabad High Court in Lalji Singh v. Gaya Singh I.L.R. (1903) All. 317 In that case it was held that an agreement where by a decree is adjusted, and so rendered unenforceable, is not within the purview of Section 257A of the Code of Civil Procedure. But it appears from that judgment that the full bench ruling in Heera Nema v. Pestonji was not considered in all its fullness, and the learned Judges rather went on considerations which induced them to suppose that out of the various decisions applicable to support their decision, the case in Tukaram v. Anantbhat was applicable. In the first place, we are bound by the decisions of our Court. Moreover, it is clear from the observations on p. 325 that, with all respect, the High Court of Allahabad did not appreciate that the decision in the cases of Tukaram v. Anantbhat and the decisions in the cases of Heera Nema v. Pestonji and Dhanram v. Ganpat were reconcilable as explained at pages 260 and 261 of the case of Tukaram v. Anantbhat and at page 99 of the case of Dhanram v. Ganpat. The full bench case of Heera Nema v. Pestonji was practically accepted as an authority in the case of Bhagchand v. Radhakisan I.L.R. (1903) Bom. 62 : 5 Bom. L.R. 672Another case referred to was that of Venkata Subramania Ayyar v. Koran Kannan AhmodI.L.R. (1902) Mad. 19 But that was also a case under the first paragraph of Section 257A

12. The second point that was urged by Mr. Rao was that the executing Court was informed of the fact that the decree was satisfied, and that was sufficient to give validity to the bond. His argument was that when the Court was informed of the fact of settlement in pursuance of the terms of Section 258 of the old Code or the corresponding provision in Order XXI, Rule 2, of the new Code, Section 257A can have no application. I do not think that the argument is sound. If the argument is allowed, it is open to the decree-holder to get out of the provisions of Section 257A by merely informing the executing Court that the decree has been satisfied. Evidently, the Court, when so informed that the decree has been satisfied, is not expected to go into the details as to how the decree is satisfied, and to allow the argument will only open to decree-holders minded to be unfair a very easy contrivance to support transactions not sustainable under Section 257A.

13. Mr. Rao further contended that inasmuch as the executants of the mortgage were some persons other than the original judgment-debtors, in addition of course to the latter, Section 257A will not apply, and he relied upon certain decisions which are clearly distinguishable. This is a point which is covered by the decision in Venkata Subramania Ayyar v. Koran Kannan Ahmod I.L.R. (1902) Mad. 19 and as laid down in that case, the mere fact that some of the executants of the mortgage-deed were not judgment-debtors under the decree in lieu of which the mortgage was taken, will not affect the application of Section 257A.

14. Lastly, it was argued that so far as the provisions of Section 13, Clause (c), of the Dekkhan Agriculturists' Relief Act went, the only thing that could at the most be deleted is the clause in the mortgage as to provision for interest. But the language of Section 13, Clause (c), is so wide that the argument cannot be allowed. The clause says that ' in the account of principal there shall not be debited to the debtor any money which he may have agreed to pay in contravention of Section 257A of the Code of Civil Procedure '. Evidently, the money that was agreed to be paid in consideration of the mortgage is the entire sum of money mentioned as principal in the deed along with interest on it. It is not permissible to split up the consideration in the way in which Mr. Rao contended. If we look at the provision in Section 24 of the Indian Contract Act, it is clear that this was a mortgage the consideration of which cannot be split up. Section 24 enacts: 'If any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object, is unlawful, the agreement is void.' It is clear, therefore, that the contention raised by Mr. Rao cannot be accepted.

15. The result is that the decision of the lower appellate Court is upheld, and the present second appeal is dismissed with costs.

Baker. J.

16. I agree. The case is, I think, covered by the rulings in Heera Nema v. PestonjiI.L.R. (1898) Bom. 693 followed in Dhanram v. Ganpat I.L.R. (1902) Bom. 93 : 4 Bom. L.R. 872 It is not a fact, as stated in certain judgment of another High Court, that the learned Judges in Dhanram v. Ganpat refused to follow the ruling in Tukaram v. Anantbhat I.L.R. (1900) Bom. 252 : 2 Bom. L.R. 1012 On the contrary they have distinguished that ruling, which is under the first clause of Section 257 A and not under the second, with which we are now concerned. I agree that the appeal should be dismissed with costs.


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