1. This suit was brought by the Rajah of Ramnad, in his capacity as hereditary trustee, of certain Devastanams, to obtain from the lessees, who are the firm of A.L.A.R., an account of the income of the village of Ekkakudi for fasli 1322 and for payment of the amount due, according to the accounts, or such amount as may be due even if the lessees are not liable to render accounts.
2. Two questions have been argued before us : (1) whether the suit is maintainable, or does the plaintiff's remedy lie in execution of the decree in O.S. No. 71 of 1902; and (2) whether the suit is barred by limitation.
3. The compromise of the parties was embodied wholesale, in the decree of the Court in O.S. No. 71 of 1902, which is Ex. A(2). One of its terms is that the parties should obtain a declaratory decree Another term declares that in the matter of looking into the accounts, the amounts found due should be paid. In that suit, there has been no taking of accounts and no final decree, fixing the amounts due in rupees and annas. The terms of the decree which a Bench of this Court, in Appeals Nos. 373 and 374 of 1919, held to be capable of execution, are not identical with the terms of Ex. A-(2). I do not think that this decree, Ex. A-(2), is executable, for the reliefs which are sought in the plaint in the present suit.
4. On the question of limitation, it is not disputed that the plaint, having been presented on the 7th July 1919, the re-opening day after the Madura Sub-Court's vacation, is in time, if the plaintiff has 6 years under Article 116, from the date of the decree, which was 15th July 1913, or from the date of the surrender deed, Ex. A, which was 4th July 1913. The surrender dead was registered, but the parties' rights under it became merged in the decree, which was not registered. There was an alteration of three months into two months, in the later document in respect of the time, for looking into the accounts of 1922. Whether an earlier contract is superseded by a later contract, on account of a certain alteration, depends on whether the parties intended to rescind the original contract. (See Section 62 of the Contract Act). It is possible to vary a term of an original contract by a subsequent parol contract in such a way as to keep alive the original contract. See British and Beningtons, Ltd. v. North-Western Cachar Tea Co. (1923) A.C. (H.L.) 48. In the present case, I think that it is the decree which governs the relations between the parties and the registered surrender deed was only a step towards obtaining that decree. It, therefore, seems to be impossible to apply Article 116 to the facts of this case. We have the authority of a Full Bench, in Periasami Mudaliar v. Seetharama Chettiar (1904) 27 Mad. 243 for saying that Article 120 is the proper article, for suits to enforce obligations, arising out of decrees. But the fact must not be lost sight of that Article 120 is a residuary article and can only be applied when no other article is found suitable. In ordinary suits upon accounts the limitation period to recover money is three years, under Article 64, and unless it is shown that that article will not apply to the claim, as set out in the plaint, the plaintiff cannot get six years under Article 120.
5. The next question is whether the limitation period has been extended, by an acknowledgment under Section 19. In Ex. B, a letter of 16th June 1916, from Subrarnania Ayyar, styling himself as the agent to the lessees of the Ramnad Samasthanam, he states that the arrears have not been paid up, for the sole reason that the Devasthanam accounts have not been settled. I understand this to be an acknowledgment that Devasthanam accounts have to be settled and that the arrears found to be due, upon settling accounts, will then be paid up. The writer of this document, Subrahmania Ayyar, had a general power-of-attorney (Ex. C), executed in his favour by the defendants, in which he is described as the agent of all of them, carrying on all correspondence necessary and conducting all proceedings relating to the transactions, concerning the Davasthanarn chatram lands. It is argued that as Ekkakudi was under the personal management of the lessees the authority did not extend to that village, so as to make him an agent of his principals, capable of giving an acknowledgment of liability, in respect of the rent due from Ekkakudi. 1 have read Ex. C and I find no words to limit the agent's power to those villages which he actually managed. I am, therefore, of opinion that the acknowledgment under Ex. B was sufficient to extend the period of limitation to three years from that date. The suit is, therefore, in time and the appeal fails and is dismissed with costs.
Srinivasa Aiyangar, J.
6. I agree with the learned Chief Justice, but having regard to the importance of the two questions argued by the learned vakil for the appellants in this case, I wish to add a few observations of my own. The bar to the suit, by reason of the provisions of Section 47 of the Civil Procedure Code, depends on the terms of the previous decree, the question being whether the previous decree was executable in its nature. There was really no argument on the terms of the decree itself, addressed to us by the learned vakil for the appellants, and it seems to me that he merely contended himself with referring to the judgment of Abdur Rahim and Oldfield, JJ., in Apps. Nos. 373 and 374 of 1919, on the file of this Court. During the hearing of this appeal, every one proceeded on the footing, as though the decree before the learned Judges in those appeals was exactly similar in terms to the decree before us. But it was only accidentally that I discovered this morning that the decree which those learned Judges had before them was materially different in terms. Reading the decree in O.S. No. 89 of 1912, which was being construed by the learned Judges, I find that it is possible to construe that decree, as not only containing a direction for taking the accounts, but also a direction to pay the amounts that may be found due, on the taking of the accounts. In the decree before us, a razinamah, which was in Tamil, is bodily engrafted and the Court did not even attempt to make a translation of the razinamah into the English language. The translation which has been placed before us is inaccurate in material particulars. In paragraph 4 of Ex. A(2), which is the decree, from the translation it would appear that there is a kind of direction for the taking of the accounts, because the words are 'accounts should be looked into within two months.' But in the original decree, which is in the Tamil language, reference to the taking of the accounts is contained in a subsidiary clause and it cannot be construed as including a direction for the taking of the accounts. In this state of things it seems to me to be unnecessary to consider the decision of the learned Judges in the other two appeals, with regard to the document before us. Construing the present decree, I have no hesitation in coming to the conclusion that the decree is not executable. No doubt the words referring to the liability of the defendants to pay would be consistent with the decree being either directory or declaratory. But what we do find is that the decree proceeds to say that, if on the taking of the accounts a balance should be found payable by the plaintiff to the defendants, the defendants should be entitled to recover it from the plaintiff. It could possibly not have been contemplated that the decree should include a direction, executable in its nature, in favour of the defendants to recover such moneys from the plaintiff. Mr. K.V. Krishnasami Aiyar argued, no doubt, it may be that defendants would not be able to have execution of the decree, because they were not entitled to it, not having pleaded a set-off, or counter-claim and having regard also to the form of the suit; but that is no reason why the decree should not be properly construed, as containing an executable direction. For the purpose of seeing whether the decree is executable or not, referring to the liability of the plaintiff to pay the defendants if the balance should be in their favour, being in terms identical with the liability of the defendants to pay the plaintiff, if the balance should be in his favour, we cannot but regard it as being merely declaratory in its nature.
7. With regard to the question of limitation, the learned vakil for the appellants submitted that it was barred by limitation, because it was a suit for compensation for breach of contract not in writing registered, that the suit was based upon the terms of the agreement and the compromise decree should be treated for the purpose of the present suit merely as a compromise. Mr. A. Krishnaswami Aiyar, the learned vakil for the respondent, put his case on three grounds. He stated that the suit was really a suit for compensation for breach of contract in writing registered, namely, the deed of surrender, and that, therefore, he had six years, within which to institute the suit. It is clear that there was a variation of the contract, as set out in the deed of surrender, a variation though only of one term, regarding the period within which the account should be taken, but none the less a variation. Under Section 62 of the Contract Act, a contract, which is altered by the consent of the parties, need not be performed, which I take it means that the contract which is to be performed is not the old contract, but the contract as altered. Therefore a contract, the performance of which could be enforced, would only be the contract, as altered, and that contract is not entirely in writing registered. Therefore, the contention that the suit, should be deemed to be a suit on a contract in writing registered, cannot be upheld. Further having regard to the circumstance that the deed of surrender itself contemplated the razinamah being entered into between the parties and such razinamah being made the rule of Court, it cannot be suggested that the parties contemplated that they should be bound by the terms of the deed of surrender, even after they execute the razinamah by and between themselves and that is embodied in the decree.
8. The second ground on which he stated that the suit was not barred by limitation, was by reason of the acknowledgment contained in Ex. B. I agree with the learned Chief Justice that that is sufficient to save the bar of limitation.
9. The third ground, on which he said that the suit was saved from limitation was that the suit should be deemed as one on a decree, namely, the compromise decree in the previous suit. No doubt a compromise decree has got the features and characteristics, both of a compromise and a decree, and the question really is whether the suit is based on the declarations contained in a previous decree and should therefore appropriately be called a suit upon a decree, or a suit on the contract contained in the compromise. Suits on decrees have been recognized in the case reported in Periasami Mudaliar v. Seetharama Chettiar (1904) 27 Mad. 243 and the legislature has also recognized what are called suits upon judgments. They are called suits upon judgments, I take it, because the English lawyers, who were responsible for the enactments, were more acquainted with the term 'judgments' according to the English procedure, than with the term 'decrees.' In the Presidency Small Cause Courts Act, Section 19, suits on any judgment of a High Court are excluded from the jurisdiction of the Presidency Small Cause Courts, and in the Provincial Small Cause Courts Act, similarly a suit upon a foreign judgment, as defined in the Code of Civil Procedure, or upon a judgment obtained in British India, is excluded. If decrees can be declaratory in their nature, and suits can be instituted for the purpose of enforcing the rights and obligations declared by such decrees, I think the most appropriate term to be applied to such suits would be that they are suits upon judgments or decrees. But for, perhaps Section 47, Civil Procedure Code, there may be many such suits. The compromise having become merged into the decree, the suit baaed upon a compromise, so merged into the decree, should properly be denominated only as a suit upon a decree. Article 64 cannot apply, because it is an article for the recovery of money, on accounts stated between the parties, and it seems to me that Article 115 cannot apply, because the suit is not merely on a contract between the parties. In the absence of any other appropriate article to be applied to such a suit as this, the proper article to be applied is as was held in Periasami Mwlaliar v. Seetharama Chettiar (1904) 27 Mad. 243 Article 120. Applying that article, the suit is in time. I, therefore, agree with the learned Chief Justice that the appeal fails and should be dismissed with costs.