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Subbaraya Iyer and ors. Vs. Ramsawmi Pillai - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in13Ind.Cas.204
AppellantSubbaraya Iyer and ors.
RespondentRamsawmi Pillai
Cases Referred and Thakoor Dyal Singh v. Sarju Pershad Misser
Excerpt:
civil procedure code (act xiv of 1882), sections 257a, 244 - civil procedure code (act v of 1908), section 47, order xx rule 11--execution of decree--arrangement between parties substantially adding to decree--sanction of court--execution after coming into force of civil procedure code, 1908--enforceability. - - 28 of 1903 on the file of the district court of trichinopoly, obtained upon a deed of hypothecation, the parties entered into an agreement whereby the second defendant was given time to satisfy the decree on condition of his paying interest at 12 per cent, per annum instead of 9 per cent, per annum and the decree was made executable against the person of the second defendant as well as by sale of the hypotheca......by sale of the hypotheca. the court sanctioned the arrangement under section 257a of the code of civil procedure on july 26th, 1905. on august 2nd, 1909, the plaintiff's legal representatives sought to execute the decree for the unpaid balance by arresting the second defendant. the district judge dismissed the application, relying on the ruling in venkatagiri iyer v. sodagopa chariar 14 m.l.j. 359. it was held in that decision that the court's sanction of an agreement between the decree-holder and the judgment-debtor by which the former is benefited does not make it a part of the decree, but the decree-holder must bring a separate suit to enforce it. bashyam iyenger, j., pointed out that a court has no power to vary or add to its decrees after they are passed except under particular.....
Judgment:

1. In the course of executing the decree in Original Suit No. 28 of 1903 on the file of the District Court of Trichinopoly, obtained upon a deed of hypothecation, the parties entered into an agreement whereby the second defendant was given time to satisfy the decree on condition of his paying interest at 12 per cent, per annum instead of 9 per cent, per annum and the decree was made executable against the person of the second defendant as well as by sale of the hypotheca. The Court sanctioned the arrangement under Section 257A of the Code of Civil Procedure on July 26th, 1905. On August 2nd, 1909, the plaintiff's legal representatives sought to execute the decree for the unpaid balance by arresting the second defendant. The District Judge dismissed the application, relying on the ruling in Venkatagiri Iyer v. Sodagopa Chariar 14 M.L.J. 359. It was held in that decision that the Court's sanction of an agreement between the decree-holder and the judgment-debtor by which the former is benefited does not make it a part of the decree, but the decree-holder must bring a separate suit to enforce it. Bashyam Iyenger, J., pointed out that a Court has no power to vary or add to its decrees after they are passed except under particular provisions of law and he quoted in support of his view the opinion of the Privy Council in Kotagiri Vencatasubbamma Row v. Vellanki Venkatrama Row 24 M.P 1 that subsequent variations of deorees unless made under Section 206 or Section 623, Civil Procedure Code, were ultra vires. Their Lordships of the Privy Council observed at the same time that it was open to the Court to treat such a compromise as a rule of Court and to stay all further proceedings in the decree against the third defendant who alone compromised in that case with the plaintiffs except for the purpose of enforcing the compromise.

2. Now, in the present instance the compromise was sanctioned by the Court at a time when the Code of 1882, was in force and compromises of this nature after suit were declared by Section 257A to be void unless made for consideration and with the sanction of the Court.

3. When execution against the person of the second defendant was applied for in 1909, the Code of Civil Procedure of 1908 was in force and the old Section 257A had dropped out. Further, the old Section 210 had reappeared as Order XX, Rule 11 in a new form containing a provision for a Court after the passing of a decree where and in so far as it is a decree for the payment of money, ordering the postponement of payment of the amount decreed on such terms as to the payment of interest as in thinks fit. Lastly, Section 47 of the new Coda of Civil Procedure, corresponding to Section 244 of the old Code, had an additional Clause added to it, which permits Courts, subject to objections that may be raised on account of limitation or jurisdiction, to treat proceedings under this Section relating to the execution, discharge or satisfaction of a decree as a suit or a suit as a proceeding.

4. With this alteration of the law the ratio decidendi of the decisions in Venkatagiri Iyer v. Sadagopachariar ` and Palanippa Chettiyar v. Sayari Naidoo 18 M.L.J. 548 : 4 M.L.T. 233 has lost its force.

5. We find no difficulty in following the decisions in Sheo Golam Lall v. Beni Prosad 5 C.P 27 : 4 C.L.R. 29; Durga Prasad Banerjee v. Lalit Mohan Singh Roy 25 C.P 86 and Thakoor Dyal Singh v. Sarju Pershad Misser 20 C.P 22 and we think accordingly that the second defendant who had the benefit of the arrangement for delay in execution and the order passed sanctioning it, is not at liberty to resile from that arrangement.

6. The lower Court's order is reversed and the case will be sent back to the District Judge for proceeding with the execution application.

7. The respondent will bear the appellant's coats in both Courts.


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