Skip to content


Sait Hemraju Ratanchand Firm Represented by Partner Sait Veerachand Vs. Katta Subrahmanyam and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 71 of 1955
Judge
Reported inAIR1960AP324
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47
AppellantSait Hemraju Ratanchand Firm Represented by Partner Sait Veerachand
RespondentKatta Subrahmanyam and anr.
Appellant AdvocateG. Chandrasekhara Sastri, Adv.
Respondent AdvocateC.V. Kanyakaprasad, Adv. for ;G. Venkatarama Sastry, Adv.
DispositionAppeal dismissed
Excerpt:
.....- effect of pre decretal agreement - section 47 of code of civil procedure, 1908 - pre decretal oral agreement between decree holder and judgment debtor postponing execution of compromise decree - whether agreement can be pleaded as bar in execution of decree - same can be pleaded as bar in execution and court has to inquire into it under section 47. - all india services act, 1951. sections 32(c) (as amended by section 3 of amendment act, 2005] & 10 & general clauses act, 1897, section 6: [g.s. singhvi, cj, dr.g. yethirajulu, ramesh ranganathan, g.bhavani prasad, c.v. nagarjuna reddy, jj] exemption of building from applicability of provisions of act held, (per majority) section 32(c) of the act provides that the provisions of the act shall not apply to any building the rent of..........2 and 4.it was found by the learned subordinate judge, on the evidence led in support of the oral agreement, that the said pre-decretal agreement was true. he accordingly dismissed the execution petition. the decree-holder appealed and in the appeal two points were raised, namely, (1) that the finding of the learned subordinate judge is not supported by the evidence in the case and (2) in the case of a compromise decree, the principle accepted by the decision in papamma v. venkayya, ilr 58 mad 994: (air 1935 mad 860) (fb), that a pre-decretal arrangement not to execute the decree could be pleaded cannot be invoked.the learned chief justice, after going through the oral evidence adduced in the case, held that the oral pre-decretal agreement set up by the judgment-debtors was made.....
Judgment:

Jaganmohan Reddy, J.

1. In the Letters Patent Appeal against the judgment of the former Chief Justice, the question which falls for determination is whether evidence of an oral pre-decretal agreement between the decree-holder and the judgment-debtors to execute a compromise decree against some of the judgment-debtors, is admissible.

2. The facts of this case are that the decree-holder filed O. S. 96/1948 on the file of the Subordinate Judge, Amalapuram for recovery of certain amount due from defendants 1 to 4 A com-promise decree was passed thereon on 3-11-1949 under which the defendants had to pay Rupees 6 917-9-3 with interest thereon at 16-78th per cent per annum from 9-11-1948 and costs.

Under Clause (2) of that decree if the defendants paid a sum of Rs. 7,521-1-0 with interest at 6 p. c. per annum within six months from that date, viz., 3-11-1949, the decree-holder should accept the said amount in full discharge of the decree. After the decree, the decree-holder having realised certain amounts from defendants 1 and 3, filed an execution petition for recovering the balance from defendants 2 and 4. In answer to this execution petition, defendants 2 and 4 pleaded that there was an oral pre-decretal agreement whereunder the parties agreed that the decree should be executed in the first instance against defendants 1 and 3 only and thereafter for the balance against defendants 2 and 4.

It was found by the learned Subordinate Judge, on the evidence led in support of the oral agreement, that the said pre-decretal agreement was true. He accordingly dismissed the execution petition. The decree-holder appealed and in the appeal two points were raised, namely, (1) that the finding of the learned Subordinate Judge is not supported by the evidence in the case and (2) in the case of a compromise decree, the principle accepted by the decision in Papamma v. Venkayya, ILR 58 Mad 994: (AIR 1935 Mad 860) (FB), that a pre-decretal arrangement not to execute the decree could be pleaded cannot be invoked.

The learned Chief Justice, after going through the oral evidence adduced in the case, held that the oral pre-decretal agreement set up by the judgment-debtors was made out and in that view found no justification to differ from the learned Subordinate Judge. On the 2nd question raised before him, applying the principle laid down in the case cited above, the learned Chief justice held that he could not see any difference between a decree made by court after adjudication and a compromise decree and that in either case, it was a decree made by a court, though in the case of a compromise decree an appeal will not lie and the decree cannot be modified except by the consent of parties.

In all other respects, the decree binds the parties against whom it is made, and in execution thereof they cannot go behind the decree. He was further of the view that the decree was kept intact and if the agreement relates only to the execution of the decree, the circumstance that in one case it is a compromise decree and in the other a decree made after adjudication is not of much relevance. If so, if a pre-decretal agreement where-under the decree-holder agreed not to proceed against certain judgment-debtors could be pleaded in execution, there was no reason why a pre-decretal agreement whereunder the decree-holder agreed to proceed against some of the judgment-debtors after he executed the decree against others could be put on a different footing. In that view, the appeal was dismissed.

3. Learned Advocate for the appellant, Shri Chandrasekhara Sastri, does not now challenge the finding relating to the truth and existence of the oral pre-decretal agreement. His only contention is that such an agreement, being an oral one having regard to the provisions of Section 92 of the Evidence Act, is not admissible, inasmuch as under the agreement the decree-holder has first to execute against defendants 1 and 3 and then only against defendants 2 and 4, while under the compromise, the decree was executable against all the defendants equally. This pre-decretal agreement has the effect of varying or atlering a compromise decree, which stands on no higher footing than a written agreement with the seal of the court affixed thereto. If so, it is hit by the provisions of Section 92 of the Evidence Act.

4. Learned Advocate for the respondents, Shri Venkatarama Sastri, contends inter alia that (a) acompromise decree is not different from an ordinary decree; as such the principles enunciated in the Full Bench judgment of ILR 58 Mad 994: (AIR 1935 Mad 860) are applicable, (b) even if they are not, provisos (2) and (3) to Section 92 made the evidence relating to pre-decretal agreements admissible, and (c) in, any case, the effect of the oral agreement is not to contradict, vary, add to or subtract from the terms of the compromise decree, but only to postpone the execution of the decree, against some of the defendants, while keeping the decree intact, as such it can be raised in execution proceedings.

5. The question whether an agreement not to execute a decree against some of the judgment-debtors made prior to the passing of the decree in the suit could be pleaded as a defence to the execution of the decree came up for consideration in the case of Chidambaram Chettiar v. Krishna Vathiyar, ILR 40 Mad 233: (AIR 1918 Mad 1174) (FB), where it was held that such an agreement can be pleaded in proceedings taken in execution of the decree, In that case the Officiating Chief Justice observed as follows;

The powers of the court executing a decree are laid down in Section 47 the terms of which are expressly wide . . . By a long course of decisions in this Presidency it has been held that an agreement made before the passing of the decree by which the decree was not to be executed for a certain time is a matter to be enquired into and decided by the executing Court.'

This Full Bench decision was followed in Samba-siva Aiyar v. Thirumalai Ramanuja Thathachariar, 37 Mad LJ 356; (AIR 1920 Mad 97) and though it was argued there that the Full Bench judgment required reconsideration, that argument was repelled by Ayling and Krishnan JJ. with the observations, 'We are not justified in cutting down the effect of the Full Bench in the manner suggested. We think the Full Bench decided that any pre-decree agreement between the parties to a suit by the terms of which the passing of the decree is not to be objected to but the execution is to be stayed In whole or, in part either temporarily or for all time can be pleaded and given effect to in execution proceedings and Order 22, Rule 1 is no bar.'

That Full Bench was followed in the subsequent decisions also. In Velu Thevan v. Krishnasami Reddi, 48 Mad LJ 277; (AIR 1925 Mad 591), Madhavan Nair find Jackson. JJ. considered all the previous decisions and applied the principles laid down by the Full Bench, though they thought that the decision in Arumugam Pillai v. Krishnaswami Naidu, ILR 43 Mad 725: (AIR 1920 Mad 124) and Mattayya v. C. Kottayya, 14 Mad LW 317: (AIR 1921 Mad 616) try to limit the application of the Full Bench decision. In 1935 this question again came up for consideration in ILR 58 Mad 994: (AIR 1935 Mad 860) before a Full Bench consisting of Beasely, C. J., Cornish and Pandrang Row, JJ. before whom it was contended on behalf of the decree-holder that evidence of of an oral agreement was excluded by Section 92 of the Indian Evidence Act and that the oral agreement could not be pleaded in bar of execution in the court executing the decree.

The Full Bench held that (i) a decree does not come within the purview of Section 92 of the Indian Evidence Act, (ii) an agreement not to execute a decree is not one which attempts to vary the terms of the decree, and (iii) the agreement pleaded was one which related to execution alone and did not attack the decree itself and that the matter could be enquired into by the court executing the decree. The decisions of the Madras, Allahabad, Calcutta, Rangoon and Lahore High Courts, wherein there was a conflict of opinion, were referred to.

According to one view a decree is a 'matter required by law to be reduced to the form of a document,' the parties shown in the cause-title of the decree being parties to the instrument, and therefore comes within the purview of Section 92 of the Indian Evidence Act. The other view was that an oral agreement between parties to a decree varying the terms of the decree can be proved, and that the proof thereof is not barred by Section 92 of the Evidence Act. The Full Bench considered the observations of Napier and Krishnan, JJ. in an unreported case decided by them (S. A. No. 62 of 1920 (Mad)) whereby they repelled a contention that inasmuch as the words 'representatives in interest' have been used in Section 92 in its latter part which are applicable only in the case of documents of a dispositive character, they consequently narrowed the scope of Section 92 which cannot cover the case of a decree. Pandrang Row, J. speaking for the Full Bench observed at pp. 999-1000 (of IL11 Mad); (at p. 861 of AIR) as below:

'The correct method of approaching this question is to consider first the real nature of a decree. Apart from the definition of 'decree' (in Section 2(2) of the Code of Civil Procedure) in all systems of jurisprudence this word or its equivalent means an adjudication by a court of the rights of the parties litigating before it; it is not an act of the parties but an act of the Court, and derives its binding force or validity from the authority of the Court and not from an agreement or contract between the parties. A decree is not a creature of consensus but of the Court. Only a court can brine it into existence, and only a Court can vary or nullify it. Even when and it implies that but for such exclusion the agreement or compromise does not become a decree until the court directs the passing of a decree in the terms of the compromise. Even where parties adjust a decree an order of the Court is necessary to give effect to the adjustment; without such an order the adjustment by the parties leaves the decree as it is. A decree or its terms cannot be varied or modified except by the Court; it is a matter of procedure and not of rules of evidence. The parties cannot by their agreement alone vary or modify the terms of the decree whether the agreement be oral or written.

'The rule enacted by Section 92 of the Indian Evidence Act is a rule excluding evidence of oral agreement varying the terms of certain documents, and at implies that but for such exclusion the agreement could in law vary the terms .... The law does not contemplate the possibility of varying decrees of Court by mere agreement between the parties thereto; the mischief against which Section 92 of the Indian Evidence Act is directed could never affect decrees. Attempts to vary the terms of decrees are guarded against not by any rule of evidence but by rules of procedure, such as those relating to amendment of decrees, appeal, review and execution of decrees. To construe Section 92 of the Indian Evidence Act so as to include decrees within its purview is to construe things clean from the purpose of the things themselves.'

Even on the second question, the Full Bench held that the agreement not to execute a decree against the judgment-debtors docs not have the effect of varying its terms. In this view also Section 92 of the Evidence Act does not apply and applying the principles of the decision in ILR 40 Mad 233: (AIR 1918 Mad 1174) (FB) an oral agreement could be pleaded in bar of execution. The two Full Bench judgments of the Madras High Court leave no doubt that by a long course of decisions, it has been held that an agreement made before the passing of a decree by which execution of the decree was postponed did not have the effect of varying the terms of the decree, nor did it attack the decree itself and hence it can be pleaded as a bar to execution. It was also held that Section 92 of the Indian Evidence Act is not applicable to decrees of Court.

6. Learned Advocate for the appellant, Shri Chandrasekhara Sastri, notwithstanding the observations of the Full Bench of the Madras High Court, has tried to persuade us by a reference to several judgments of the Courts in this country that Section 92 is applicable to compromise decrees which are on a different fooling to decrees passed after contest. But in the view we have taken, it is not necessary to consider the arguments addressed to us in this behalf.

7. In our view, having regard to these Full Bench judgments, which are binding on us, we have no option but to hold that an oral pre-decretal agreement postponing the execution of a decree does not vary the terms of the decree, nor attacks it, and could be enquired into by the executing Court under Section 47 C. P. C. In Perumalswami Chettiar v. Rajaimmal, : AIR1955Mad339 , Govinda Menon and Krishnaswmi Nayudu, JJ. held that it was open to a Judgment-debtor to plead a pre-decretal agreement which does not attack the decree but which states that the decree cannot be executed under certain conditions or it can be executed only in part.

Such an agreement is not affected by Section 92, Evidence Act, as it does not amount to a modification, alternation or variation of the decree. In Kakuramji v. Bapiraju, 1956 Andh LT 357: ((S) AIR 1957 Andh Pra 75) my Lord the Chief Justice, after a review of the several cases, also came to the same conclusion, viz., that an agreement between two parties to an action, to the effect that one of the parties would not execute a decree to be obtained against the other, could be pleaded in bar of the execution. Such an agreement relates to execution and does not in any way attack the decree itself, nor does it attempt to vary the terms of the decree.

Learned advocate for the appellant contends that an oral agreement not only has the effect of varying the decree, but also of adding to it on a matter on which the decree is silent. The argument that the term prohibiting the execution of the decree until after six months is varied by the oral agreement, does not carry conviction to our minds, because, the Oral agreement only conies into operation not before six months, but only after. It is only when the decree becomes executable against all the defendants, that is after six months, the Oral agreement will become operative to postpone the execution against some of the judgment-debtors only.

In fact all the judgment-debtors are equally liable and even without the agreement also, the decree-holder, if he so chooses, can execute the decree against some selected judgment-debtors; which cannot give rise to any valid objections by the persons against whom it is being executed. Similarly, if under an agreement be is to execute the decree against some only in the first instance, that does not attack the decree, but only postpones the execution against the others. We fail to understand how an agreement not to execute the decree against some of the judgment-debtors would have the effect of adding to the terms thereof, because there is nothing in the decree which says that the decree will be executed simultaneously against all the judgment-debtors. We have no hesitation in holding that the terms of the decree are not varied or added to by reason of the oral agreement. In this view of the matter, it is unnecessary for us to deal with the question whether Section 92 of the Evidence Act or its provisions apply.

8. In the result, the appeal is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //