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Gopala Krishna Iyer and anr. Vs. Sankara Iyer - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1930Mad673
AppellantGopala Krishna Iyer and anr.
RespondentSankara Iyer
Cases ReferredFull Bench. In Chidambaram v. Krishna Vathiyar
Excerpt:
- - this is perfectly true, just as when we speak of joining hands, we assume the existence of a hand. the decree has been joined for better or worse with the agreement, and whether the court's certificate is or is not necessary, it is none the less an adjustment. that is perfectly plain, and the object is perfectly plain......his argument to a repetition of the plea that the language of section 92 precludes the idea of a prior agreement. the language of section 92, on the contrary, makes it clear that no agreement, whether prior or subsequent, can be proved. it would indeed be a curious state of the law if, for instance, a mortgagor though precluded from going behind the plain terms of a registered document by a plea of subsequent agreement, could nevertheless lead evidence to prove a prior agreement. on this short ground the appeal must succeed and the judgment and order of the learned district munsif must be restored.3. in the course of the argument chidambaram chettiar v. krishna vathiyar [1917] 40 mad. 23 and kindred rulings have been discussed, and i would venture to observe that these cases seem to.....
Judgment:

Jackson, J.

1. Appellants are decree-holders in O.S. No. 158 of 1922 District Munsif's Court, Srivaikuntam, and hold a decree for ejectment and mesne profits. The respondent has pleaded a prior oral agreement whereby appellants can only eject him on payment of Rs. 175 in discharge of an othi. The learned Subordinate Judge has ordered evidence to be taken on this plea. The appellants claim that it is unsustainable in law.

2. The District Munsif rejected the plea in limine because, as laid down in Section 92, Evidence Act; an oral agreement contradicting or varying the terms of a disposition of property reduced to the form of a document cannot be proved. He cited Rajah of Kalahasti v. Venkatadri Rao A.I.R. 1927 Mad. 911 to show that a decree is a disposition of property, and Abdullah Khan v. Basharat Husani [1913] 35 All. 48 as authority that it is immaterial whether the oral agreement sought to be proved is prior or subsequent to the disposition. The learned Subordinate Judge merely records his ipse dixit that the Munsif is wrong, without reference to these or any other authorities. That is not the way in which an appeal should be decided. In this Court the respondent had nothing to cite against the clear authority of these two rulings, and confined his argument to a repetition of the plea that the language of Section 92 precludes the idea of a prior agreement. The language of Section 92, on the contrary, makes it clear that no agreement, whether prior or subsequent, can be proved. It would indeed be a curious state of the law if, for instance, a mortgagor though precluded from going behind the plain terms of a registered document by a plea of subsequent agreement, could nevertheless lead evidence to prove a prior agreement. On this short ground the appeal must succeed and the judgment and order of the learned District Munsif must be restored.

3. In the course of the argument Chidambaram Chettiar v. Krishna Vathiyar [1917] 40 Mad. 23 and kindred rulings have been discussed, and I would venture to observe that these cases seem to proceed on a misunderstanding of what the word 'adjustment' means. Seshagiri Aiyar, J. (pp. 239) says:

The agreement in question is not an 'adjustment within the meaning of Order 21, Rule 2,

evidently implying that the agreement is an adjustment outside the meaning of Rule 2. The sense of the Full Bench case has, with all respect, been correctly given by my brother Wallace, J., in Venkatasubba Mudali v. Manickammal A.I.R. 1926 Mad. 582:

The question was whether a pre-decree arrangement can be pleaded.

4. Now this arrangement or agreement is not an adjustment at all, and to talk of a pre-decree adjustment would be a meaningless phrase.

5. 'Adjust' is a word that has come into English from French and Medieval Latin, and simply means to join, with possibly an added sense of join harmoniously, because the original adjust are having become adjust are, some idea of justice has intruded, though it is quite foreign to the original derivation. So, when the judgment-debtor informs the Court of an adjustment of the decree he informs the Court that he has joined it to something else, quite possibly so as to give him a sense of harmony and justice, though the principal point is that he has joined it. When he seeks to certify under Order 21, Rule 2, the judgment-debtor does not plead a previous agreement or arrangement; he pleads that he has joined the decree to something and unless he acts under Order 21, Rule 2 he must allow the decree to be executed simply as it stands without any adjunct.

6. Abdur Rahim, J. in Chidambaram Chettiar v. Krishna Vathiyar [1917] 40 Mad. 23, observes that Order 21, Rule 2, which speaks of a decree being adjusted assumes the existence of the decree at the time of the adjustment. This is perfectly true, just as when we speak of joining hands, we assume the existence of a hand. But when the learned Judge proceeds to say that Order 21, Rule 2, has no application to cases in which the alleged adjustment was by virtue of a pre-decree agreement, the ground seems hardly so firm. I do not think the word alleged assists the argument. The decree has been joined for better or worse with the agreement, and whether the Court's certificate is or is not necessary, it is none the less an adjustment. For the proposition that Order 21, Rule 2, will not apply to such an adjustment of a decree with a pre-decree agreement we are referred to Rama Ayyan v. Sreenivasa Pattar [1896] 19 Mad. 230, which contains this passage:

Presumably the section (now Order 21, Rule 2) has no application to this case because on the date of the transaction, which if proved, would prevent the appellant from executing the decree, he was not himself the decree-holder. As I understand the said provision of the law it is only when the parties to a transaction entered into for the purpose of satisfying or adjusting a decree stand at the date of such transaction in the relation of judgment-debtor and judgment-creditor to each other, that a Court executing a decree is prohibited from recognizing such transaction unless duly certified.

7. Hero there is the same confusion between the agreement and the adjustment which joins the agreement to the decree. It is assumed that what the Court is asked to recognize is the agreement and that agreement need not be certified because when the parties entered into the agreement there was no decree and no judgment-debtor or creditor. But the Court is not asked to certify the agreement, but to certify the joining of the agreement with the decree. Assume that they are literally pinned together and the judgment-debtor says, 'in executing this decree you must read it along with this agreement.' The Court may then certify, and unless there is such certificate the Court will pay no attention to what is pinned to the decree. That is perfectly plain, and the object is perfectly plain. A judgment-debtor must not be allowed to reopen the argument when execution is reached. But in this Presidency at the stage of execution a judgment-debtor can produce a decree with an agreement joined or pinned to it. If that agreement is post-decree, the Court executes the decree as it stands, but if that agreement is pre-decree it reopens the argument, which, with the profoundest respect to authority I feel constrained to observe, is a distinction without a difference. I should hold that under Order 21, Rule 2, any adjustment whether it be to a pre-decree or to a post-decree agreement, must be certified, otherwise the clear provision of the statute is evaded. This is the view in Benode Lal Pakrashi v. Brajendra Kumar Saha [1902] 29 Cal. 810, and Hassan Ali v. Gauzi Ali Mir [1904] 31 Cal. 179 to which I would defer. Happily, as this case is decided by the provision of Section 92, Evidence Act, I have not to decide what a Court should do when it is confronted by a clear provision in a statute and a contrary ruling of a Full Bench. In Chidambaram v. Krishna Vathiyar [1917] 40 Mad. 23 Seshagiri Ayyar, J., was evidently impressed by the uniform and consistent view of the Calcutta High Court, but preferred to adopt the principle of stare decisis. But I should confess to difficulty in standing by the Madras decision which I feel convinced is wrong. Costs to the appellant in this and lower appellate Court.


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