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Valappil Cheru Moidin's son MoidIn Kutti Vs. thekkumcheri Narayanan Unni Moopil Nayar (10.04.1945 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1946Mad161; (1945)2MLJ135
AppellantValappil Cheru Moidin's son MoidIn Kutti
Respondentthekkumcheri Narayanan Unni Moopil Nayar
Cases ReferredNarayanan Chettiar v. Veeru Gounder
Excerpt:
- - 2. there is a good deal of case-law on the subject of the scaling down of compromise decrees, and its application is not made easier from the fact that two important decisions of the bench dealing with cases under act iv of 1938 have not apparently been reported. the parties will pay and receive costs here and in the lower appellate court proportionate to their failure and success......for rs. 1,600. the compromise provided that the plaintiff would give up the whole amount of the suit claim and court costs except for rs. 2,500. if the defendants paid before a certain date the plaintiff would give up a further sum of rs. 500. failing that, the whole amount of rs. 2,500 would be realised by the sale of the properties in the plaint schedule. the first defendant gave up all his contentions including any claim for costs. on this decree the trial court held that there was a simple renewal of the amount claimed on the mortgage by means of the compromise and scaled down the debt to rs. 1,600, which was the principal of the mortgage. the lower appellate court applying the decision in subbarayudu v. sriramulu : air1944mad13 has held that the compromise is one in respect of.....
Judgment:

Wadsworth, J.

1. This appeal arises out of an application to scale down a compromise decree. The decree arose out of a suit for Rs. 3,000 due on a mortgage for Rs. 1,600. The compromise provided that the plaintiff would give up the whole amount of the suit claim and Court costs except for Rs. 2,500. If the defendants paid before a certain date the plaintiff would give up a further sum of Rs. 500. Failing that, the whole amount of Rs. 2,500 would be realised by the sale of the properties in the plaint schedule. The first defendant gave up all his contentions including any claim for costs. On this decree the trial Court held that there was a simple renewal of the amount claimed on the mortgage by means of the compromise and scaled down the debt to Rs. 1,600, which was the principal of the mortgage. The lower appellate Court applying the decision in Subbarayudu v. Sriramulu : AIR1944Mad13 has held that the compromise is one in respect of which it is impossible to say how much of the amount decreed represents the antecedent debt and that therefore the decree is not susceptible of being scaled down under Section 8 of Madras Act IV of 1938 though the mortgage was one of 1922. The decision quoted is however concerned with facts decidedly more complicated than those of the present case.

2. There is a good deal of case-law on the subject of the scaling down of compromise decrees, and its application is not made easier from the fact that two important decisions of the Bench dealing with cases under Act IV of 1938 have not apparently been reported. After the early decisions in Ramamurthi v. Sitaramayya : AIR1941Mad56 and Kantian Nambiar v. Subramania Pattar : AIR1941Mad231 in which the principle was laid down that a compromise decree could be scaled down as a renewal of the antecedent liability if the facts made it possible to show to what extent the antecedent liability with interest thereon made up the decree, there have been various other decisions. The decision in Narayanan Chettiar v. Veeru Gounder : (1941)2MLJ658 when dealing with the appropriation of payments towards a compromise decree deprecated the practice of taxing the costs at the time when the decree was scaled down for the purpose of appropriating the payments towards the decree with reference to the proviso to Section 19; but the Court in that case was not concerned with the question whether the amount of the costs could be ascertained for the purpose of finding out to what extent the compromise was a renewal of the original debt. This was pointed out by a decision in A.S. No. 235 of 1941 where the Bench held that the circumstances established in that case that the effect of the compromise was that the plaintiff gave up the claim to costs and consented to receive a lump sum in discharge of the pre-existing liability, and it was held that the whole of the amount decreed could be treated as a renewal of that antecedent liability. There is a further unreported decision which approximates very closely to the present facts. This is the judgment in A.A.O. No. 491 of 1939 and C.R.P. No. 2316 of 1939 where the suit on a promissory note resulted in a compromise which provided for the payment of a lump sum of Rs. 11,011-6-6 towards the suit amount with costs and subsequent interest; It was conceded that the costs of this suit would be Rs. 1,312-8-6. On these facts it was decided that since the decree includes costs, on the assumption most favourable to the plaintiff it would seem to follow that the amount decreed less Rs. 1,312-8-6 must at least be a renewal of the previous indebtedness, and there was no complication by the compromise taking into consideration matters outside the suit, a decree was given on the basis that the rest of the amount due under the compromise must be treated as a renewal of the antecedent transactions and the decree for costs was left intact.

3. It seems to me that this last decision must govern the present case. Here the suit claim was entirely made up of the amount due on the antecedent mortgage for Rs. 1,600 executed in 1922. The parties agreed to pay and receive a lump sum in discharge of that claim and of the amount due for costs. There is nothing to show that the claim for costs was waived. It is incumbent upon the debtor to prove the extent to which interest is available for cancellation and the extent to which the compromise figure can be deemed to be a renewal of the antecedent liability. The trial Court has found that the costs of this suit would amount to approximately Rs. 500. To this extent therefore the judgment-debtors cannot say that the compromise figure is a renewal of the antecedent liability. The balance of the amount decreed must necessarily have been made up of the principal and interest of the mortgage debt. The appellant is therefore entitled to the amendment of the decree so as to provide for the payment of Rs. 1,600 with interest thereon at 5 per cent, from 1st October, 1937, and for Rs. 500 being the amount of costs with interest thereon at 5 per cent, from the date of the decree, 21st July, 1933 to 22nd March, 1938, the date of the commencement of the Act and thereafter at 6 per cent.

4. The appeal will be allowed, and the decree will be amended accordingly. The parties will pay and receive costs here and in the lower appellate Court proportionate to their failure and success.


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