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Eyyakku Vs. Unnalachan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 35 of 1973
Judge
Reported inAIR1974Ker139
ActsEvidence Act, 1872 - Sections 115; Code of Civil Procedure (CPC) , 1908 - Sections 47
AppellantEyyakku
RespondentUnnalachan
DispositionPetition dismissed
Cases Referred and Mathukuttv v. Lakshmikutty Amma
Excerpt:
- - but to uphold the plea of estoppel, the learned judges have pointed out that the court must be satisfied that the question raised in the subsequent suit was present in the minds of the parties, and was dealt with by the compromise. the court has to be satisfied that the parties intended that the question at issue should be finally decided by the consent decree......decree obtained by him against the respondent. on 5-11-1970. the agreement was entered into by the decree-holder and the judgment-debtor by which a lump sum of rs. 100/- was paid by the judgment-debtor and in consideration of that, the decree-holder agreed to receive rs. 350/- in full satisfaction of the decree. a period of three months was also allowed for paying the balance; but the balance was not so paid. the decree-holder thereupon started execution of the decree for the whole amount. the judgment-debtor claimed benefits under act 11 of 1970 saying that he is an agriculturist entitled to protection thereunder. this plea of the judgment-debtor has been upheld by the court below and so the decree-holder has come up in revision.2. the question for consideration is whether the agreement.....
Judgment:
ORDER

K. Sadasivan, J.

1. Decree-holder is the revision petitioner. He filed E. P. for execution of the decree obtained by him against the respondent. On 5-11-1970. the agreement was entered into by the decree-holder and the judgment-debtor by which a lump sum of Rs. 100/- was paid by the judgment-debtor and in consideration of that, the decree-holder agreed to receive Rs. 350/- in full satisfaction of the decree. A period of three months was also allowed for paying the balance; but the balance was not so paid. The decree-holder thereupon started execution of the decree for the whole amount. The judgment-debtor claimed benefits under Act 11 of 1970 saying that he is an agriculturist entitled to protection thereunder. This plea of the judgment-debtor has been upheld by the Court below and so the decree-holder has come up in revision.

2. The question for consideration is whether the agreement dated 5-11-1970 could be construed as waiver on the part of the judgment-debtor of his benefits under Act 11 of 1970. I do not see any waiver, express or implied in the agreement Exhibit P-l. Of course under the agreement the judgment-debtor had undertaken to pay in instalments and in the event of default to make himself liable for the entire amount i.e.. the amount without the reduction. In case the judgment-debtor had carried out the agreement, he could have obtained a full discharge by payment of the balance of Rs. 350/-. But now that the agreement was not complied with, the judgment-debtor cannot ask for the reduction. He should pay the entire amount in a lump. By this time, the Act 11 of 1970 had come into effect, and it was open to the judgment-debtor to have availed himself of the concessions under the Act, he being an agriculturist coming within the purview of the Act. It is too much to presume that when the agreement was entered into, the judgment-debtor had in contemplation the benefits afforded by the Act and that he was consciously waiving them. The reduction was made by the decree-holder in consideration of the fact that Rs. 100/- was paid by the judgment-debtor then and there and agreed to pay the balance in three months' time. When that promise was broken, the parties will be relegated to the original position, and the judgment-debtor will render himself liable for the whole amount ignoring the reduction. The consequence of non-compliance with the agreement cannot go beyond that Learned counsel placed before me two decisions in support of his case that in the present circumstances, it must be presumed that the judgment-debtor had waived his privileges under the Act. The decisions are Mohamed v. Gheevarghese, '1961-2 Ker LR 246 and Mathukuttv v. Lakshmikutty Amma, 1970 Ker LT 498. In the former, the learned Judge has held that a party may contract out of the provisions of the Act and renounce its benefits, no matter the renunciation is implied or express. But when we read through the judgment. it would appear that the decision does not support the present decree-holder. The learned Judge points out that in the case of a new right that was brought into existence by reason of an amendment Act the theory of implied renunciation cannot apply. Renunciation Is a Question of fact, and cannot be decided as a pure proposition of law. In the present case no doubt, when the agreement was entered into, the new Act had come; but without proof of the fact that the privilege had been waived consciously, no argument can be built upon the theory of waiver. In the later case in 1970 Ker LT 498 it was held under similar circumstances that even though the bar of resjudicata cannot apply, the facts of the case constituted estoppel there also, and as in the present case, the decree was a compromise decree. But to uphold the plea of estoppel, the learned Judges have pointed out that the Court must be satisfied that the question raised in the subsequent suit was present in the minds of the parties, and was dealt with by the compromise. The Court has to be satisfied that the parties intended that the question at issue should be finally decided by the consent decree. There also, as in the present case, the judgment-debtor had claimed the benefits of the Debt Relief Act, and that was disputed by the decree-holder. It is significant that in that case, the compromise was entered into after withdrawing the plea of the judgment-debtor that he is entitled to the benefits under the Act. The Court observed :--

'The judgment-debtor had claimed the benefits of Act 31 of 1958 based on his status as an agriculturist. This was disputed by the decree-holder and the compromise was after withdrawing the plea specifically. The compromise decree has therefore proceeded on the basis that the judgment-debtor is not an agriculturist. This is quite sufficient to hold that it is not open to him to repeat the same plea in execution''.

3. There is no such specific plea in the present case withdrawing or foregoing the benefits afforded by Act 11 of 1970. In the absence of such a conduct on the part of the judgment-debtor, it would be unjust to dseny him the benefits of the Act. The order of the Court below is in the circumstances, correct, and in confirmation of it, this revision petition is dismissed.


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