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Govinda Nattar and anr. Vs. Murugesa Mudaliar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1932Mad557
AppellantGovinda Nattar and anr.
RespondentMurugesa Mudaliar
Cases ReferredBeenadhar Panda v. Krishnachandra Das
Excerpt:
- .....executable. the calcutta high court has adopted a different view. it is however contended that the privy council decision in hemanta kumari debi v. midnapur zamindari a.i.r. 1919 p.c. 79, has made the madras and bombay view obsolete. there has been since that decision a bench decision of the madras high court reported in ramaswami naidu v. subbaroya tevar : air1925mad1101 . the learned judges deal with the privy council decision at (p. 497 of 47 cal.) and point out that in that case the question for consideration was the necessity for registration for being admissible in evidence of a razinama decree which contains terms which do not come strictly within the purview of the suit which was compromised. they say:in dealing with the question whether the decree can be given in evidence to.....
Judgment:

Walsh, J.

1. The respondents in this case filed a suit to recover from defendants 1 to 4 a sum of Rs. 4,600 odd alleged to be due on a promissory note dated 25th September 1921 executed by defendant 1, father of defendants 2 to 4. The plaintiffs asked for a personal decree against defendant 1 and recovery from the other three defendants out of their shares in the joint family properties in their hands. While the trial was proceeding, the parties referred the matter to arbitrators and the matter of this promissory note and another was settled by compromise Ex. K, in which there is the following clause:

In default we agree to pay the entire amount of the decree in the said suit and the entire amount in respect of V. Subramanya Mudali's bond.

2. Defendants 1, 2 and 4 who were the only contesting defendants signed this compromise. As regards the noncontesting defendant evidence had already been given by the plaintiffs in support of their claim. A decree was passed in terms of the compromise and in execution of this decree the plaintiffs proceeded to arrest defendants 2 to 4 on personal liability. The petitioners asked the lower Court for permission to amend the decree and this was refused. The revision petition is filed against this order of refusal. The Civil Misc. Second Appeal is filed on the ground that the decree cannot be executed as it stands. It is admitted that the view of the Bombay and Madras High Courts has been that the terms of a compromise even though they are beyond the scope of the suit, if embodied in a decree are executable. The Calcutta High Court has adopted a different view. It is however contended that the Privy Council decision in Hemanta Kumari Debi v. Midnapur Zamindari A.I.R. 1919 P.C. 79, has made the Madras and Bombay view obsolete. There has been since that decision a Bench decision of the Madras High Court reported in Ramaswami Naidu v. Subbaroya Tevar : AIR1925Mad1101 . The learned Judges deal with the Privy Council decision at (p. 497 of 47 Cal.) and point out that in that case the question for consideration was the necessity for registration for being admissible in evidence of a razinama decree which contains terms which do not come strictly within the purview of the suit which was compromised. They say:

In dealing with the question whether the decree can be given in evidence to affect matters not coming within the scope of the suit for want of registration the learned Judges no doubt make the remark that it may be that as a decree it is incapable of being executed outside the bounds of the suit, but that does not prevent it being received in evidence of its contents. The present question was not raised in that case and the opinion was expressed in a very hesitating manner.

3. I am bound by this Bench decision unless I hold that the matter should again be considered by a Pull Bench, and I see no reason at all to do so. As is perhaps natural, in Baji Rao v. Sakharam A.I.R. 1931 Bom. 295, which also considers this Privy Council case and in which it was contended that the Privy Council case had upset the previous view taken by that Court, it was held that it had not done so and a later Privy Council decision was quoted as confirming this view; whereas the Calcutta High Court, which had taken the opposite view, considered that the Privy Council decision had confirmed their view: vide Arjun Kapali v. Asvini Kumar : AIR1925Cal286 where it is stated that the point:

seems to have been considered and set at rest by the recent decision of the Judicial Committee in Hemanta Kumari Debi v. Midnapur Zamindari A.I.R. 1919 P.C. 79,

meaning thereby, set at rest in accordance with the view of the Calcutta High Court. The case in Gouri Dutt v. Dohan Thakur [1918] 2 Pat. L.J. 673, is no doubt in support of the view; but it may be mentioned that one of the learned Judges who decided that case, Roe, J., said with reference to that case in Beenadhar Panda v. Krishnachandra Das [1919] 4 Pat. L.J. 306 that he must assume that there were facts in that case which precluded the argument that the Court had no power to go behind the original decree. Mulla in his Code of Civil Procedure, Edn. 9, which is subsequent to the Privy Council case, gives his opinion as regards this Gouri Dntt's case [1918] 2 Pat. L.J. 673 that this decision cannot be supported either on principle or on authority so far as the ground on which it is based is concerned. As pointed out in the A.I.R. 1931 Bom. 295 case quoted above, an executing Court cannot question the decree sought to be executed except on the score of patent want of jurisdiction; want of jurisdiction is a very different matter from the erroneous exercise of it. The terms of the compromise are quite clear and the consideration for reducing the amount and for granting time for its payment is obviously the taking of personal responsibility on themselves by defendants 2 and 4 who have signed the compromise and it is not permissible to call evidence under the circumstances to contradict it.

4. A Civil Misc. Second Appeal would not in any case lie in such a case as this. Appellants' only remedy would be by way of appeal against the decree. It is argued that the decree is all right. If so, there is nothing to appeal about. If on the other hand, the appellants contend that on their interpretation of the Privy Council case the form of the decree was wrong and that it should have been stated therein that part was executable and part not, then they obviously, should have appealed against the decree. The Civil Revision Petition and Civil Misc. Second Appeal are both dismissed with costs.


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