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P. Narasimha Iyengar Vs. Lakkanna - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 538 of 1960
Judge
Reported inAIR1964Kant41; AIR1964Mys41; (1963)2MysLJ373
ActsCode of Civil Procedure (CPC), 1908 - Sections 38 and 47
AppellantP. Narasimha Iyengar
RespondentLakkanna
Appellant AdvocateS.K. Venkataranga Iyengar, Adv.
Respondent AdvocateA.V. Shankara Rao, Adv.
Excerpt:
.....is placed by sri narayan for the appellant on the full bench decision of the madras high court in the case of chidambaram chettiar v. krishna vathiyar, ilr 40 mad 233: air 1918 mad 1174 but that is not a case which is apposite, for, it dealt with an arrangement to postpone the execution, but did not deal with a matter like the present one, which in as many terms, demands the decree to be inexecutable in part. i come to the conclusion that this appeal should fail......appeal against the concurrent findings of both the courts below. the appellant-judgment-debtorpleaded that it was agreed between him and the decree-holder that a sum of rs. 605/- would begiven deduction to by the decree-holder. in other words, he pleaded a predecretal term. there was a compromise between the decree-holder and the judgment-debtor and as a result of that compromise, the decree was passed for a sum ofrs. 7,000/- against the judgment-debtor-appellant. most of the decretal amount was paid by the judgment-debtor, leaving a balance of rs. 893-8-0. thedegree-holder filed an execution for the recovery of the said amount. the judgment-debtor filed an objection pleading the predecretal adjustment of rs. 605/- as stated supra. the question that had to be decided by the.....
Judgment:

1. This is a judgment-debtor'ssecond appeal against the concurrent findings of both the courts below. The appellant-judgment-debtorpleaded that it was agreed between him and the decree-holder that a sum of Rs. 605/- would begiven deduction to by the decree-holder. In other words, he pleaded a predecretal term. There was a compromise between the decree-holder and the judgment-debtor and as a result of that compromise, the decree was passed for a sum ofRs. 7,000/- against the judgment-debtor-appellant. Most of the decretal amount was paid by the judgment-debtor, leaving a balance of Rs. 893-8-0. Thedegree-holder filed an execution for the recovery of the said amount. The judgment-debtor filed an objection pleading the predecretal adjustment of Rs. 605/- as stated supra.

The question that had to be decided by the twolower courts was, whether such predecretal arrangement could be pleaded in execution of the decree. They came to the conclusion that the appellant-judgment-debtor cannot so plead. In the result,while dismissing the objections filed by the judgment-debtor, they held that the decree-holder canexecute the decree as prayed for by him. Aggrieved by said judgments and decrees, the judgment-debtor has filed this second appeal.

2. It is contended on behalf of the appellant-judgment-debtor that the objections filed by him had not attacked the decree; but they amount to the manner of enforcement of the decree andhence, they can be pleaded in execution. Reliance is placed on the provisions of Section 47 of the Code of Civil Procedure, which states:

'47(1) 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 bedetermined by the court executing the decree and not by a separate suit.'

It is urged that the objections of the judgment-debtor did not amount to a variation of the termsof the decree, but the manner in which such adecree has to be executed. While executing such a decree, regard should be had to the predecretalarrangement by which Rs. 605/- have to be deducted, and only the balance recovered from the judgment debtor. On the other hand, it is contendedby Shri Shankar Rao, the learned advocate for therespondent, that the amounts forming the sum ofRs. 605/- are ascertained amounts said to be duoprior to the passing of the decree. If so, if in reality, those sums were due to the judgment-debtor before passing a decree, deduction there of could have been made.

It is further contended that the nature of the decree was that the decree was based upon a compromise between the parties- It gave full scope to the parties to enter into any arrangements they possibly could, and embody the final result of their agreement as terms of the decree. The court would then pass a decree in terms of the compromise. Hence nothing prevented the judgment-debtor, if, as he alleges, that a total sum of Rs. 605/- was to be deducted from the amount due by him to the decree-holder, to get the same straightaway deducted and get a decree passed only for the balance. It is, therefore submitted that the arrangement now pleaded, viz., that when executing a compromise decree, that the decree-holder should allow a deduction of Rs. 605/- in favour of the judgment-debtor, is to say the least, most surprising arrrangement.

3. There is no dispute regarding the facts of this case, for, they are quite simple. The respondent-decree-holder comes forward with the execution of a decree in his favour, after deducting the amount paid by the judgment-debtor. His execution is confined to the recovery of a sum of Rs. 893-8-0. The judgment-debtor-appellant contends that in the execution of the decree, the decree-holder should give a deduction to a sum of Rs. 605/- according to the pre-decretal arrangement between the parties. The question arises -- Can such an agreement be pleaded in execution of a decree? The cases of various High Courts have been placed before me by both the parties. But the governing principle appears to me. is, as laid down in the case of Butchiah Chetti v. Tayar Rao Naidu, reported in AIR 1931 Mad 399, which is as follows:

'An agreement which does not relate to execution but directly attacks the decree itself cannot be pleaded in execution.'

Applying this test, it is to be seen whether the agreement attacks the decree and if it does so, it cannot be countenanced. But, if on the other hand, it is only a mode or manner of execution of the decree or relates to discharge or satisfaction thereof, such questions can be determined in execution. In the present case, as rightly contended by Sri Shanker Rao, if deduction had to be given to a sum of Rs. 605/- as pleaded by the judgment-debtor, there was nothing to prevent the parties to do so before passing a decree. But that has not been done. If the matter is agitated at this stage, it would amount to calling upon the executing Court to determine whether the decree that has been passed is properly done or not, and whether it is rightly passed for the amount actually due or otherwise. That is not within the province of an executing Court. The validity of the decree cannot be attacked in the executing Court.

If the decree is for a certain sum of money, to say, that that is not the amount that is due, but on the other hand according to certain arrangement prior to the passing of the decree, certain deduction had to be made by the decree-holder which has not been made and hence, the predecretal arrangement was, that when executing the decree, deduction should be given to that amount, it amounts to attacking the decree itself, which is not contemplated in law and is outside the provisions of Section 47 of the Code of Civil Procedure.

4. I am supported in this view by a number of cases that have been placed before me for consideration by the learned advocates appearing forthe parties. Strong reliance is placed by Sri Narayan for the appellant on the Full Bench decision of the Madras High Court in the case of Chidambaram Chettiar v. Krishna Vathiyar, ILR 40 Mad 233: AIR 1918 Mad 1174 but that is not a case which is apposite, for, it dealt with an arrangement to postpone the execution, but did not deal with a matter like the present one, which in as many terms, demands the decree to be inexecutable in part. The later decisions of the Madras High Court, therefore, held that a predecretal arrangement, that a decree should be inexecutable in part, should riot be recognised in execution proceedings.

So was the decision of a Bench of the Madras High Court in Arumugam Pillai v. Krishnaswarni Naidu, reported in ILR 43 Mad 725: AIR 1920 Mad 124, Another Full Bench of the Madras High Court in the case of Adappa Papamma v. Darbha Venkayya AIR 1935 Mad 860 has held that an agreement not to execute the decree against a particular judgment-debtor does not vary its terms, but has approved the principle laid down in AIR 1931 Mad 399, which has laid down that an agreement which does not relate to execution but directly attacks the decree itself cannot be pleaded in execution and it would be most dangerous to allow a decree itself to be attacked in execution. This latter full bench decision has also approved all the observations of Walsh J., in AIR 1931 Mad 399 case which has distinguished the Full Bench decision in ILR 40 Mad 233: AIR 1918 Mad 1174.

5. Shri Shankar Rao strongly relies upon a decision of the Rangoon High Court in the case of Mulla Ramzan v. Mg. Po Kyaing AIR 1926 Rang 140. This appears to me to be on all fours with the facts of the present case. In that case the judgment-debtor set up an agreement prior to the decree that there was an arrangement between him and the decree-holder that though the decree is to be passed for a larger sum of Rs. 2,000/-, it should only be executed for a sum of Rs. 1,000/- and not for the whole. It was held by Chari J, that such an arrangement cannot be pleaded in execution of a decree, for it in so many words, is asking the Court to embark on an enquiry whether the decree to be executed is the decree as passed by the Court or as agreed upon by the parties. According to the learned Judge, if such an arrangement is allowed to be pleaded in execution, it would be 'inviting the Court merely to take part in a solemn farce'. The only other case that was relied upon by Sri Narayan in support of his contention was a case of the Punjab High Court in Jai Lal Sheo Chand v. Bhu Dev Bhola Singh, . That was a case which dealt with the manner of enforcement of an agreement for eviction of the judgment-debtor, and hence, is easily distinguishable.

6. No reported decision of this Court has been brought to my notice. Following the decisions which state that the validity of the decree cannot be attacked in execution proceedings by a predecretal arrangement. I come to the conclusion that this appeal should fail. It is, therefore, dismissed. No costs.

7. Appeal dismissed.


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