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Rangaswamy Reddiar (Died) and ors. Vs. Jayalakshmi Ammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1973)2MLJ1
AppellantRangaswamy Reddiar (Died) and ors.
RespondentJayalakshmi Ammal
Cases ReferredPapamma v. Venkayya I.L.R.
Excerpt:
- securitisation & reconstruction of financial assets & enforcement of security interest act, 2002 [c.a. no. 54/2002]section 17; power of tribunal to impose condition relating to deposit for grant of stay of auction held, there is no specific provision made under section 17 of securitisation act or under any other provisions of the said act empowering the tribunal to pass any interim order. but under sub-section (12) of section 19 of the recovery of debts due to banks and financial institutions act, 1993, the tribunal has been empowered to pass various interim orders. if sub-section (7) of section 17 of securitisation act is read along with sub-section (12) of section 19 of recovery of debts due to bank is and financial institutions act, it would be clear that the tribunal also has..........this decision was understood in subsequent decisions- as limited to the proposition that a pre-decretal agreement could be pleaded only if it related to the mode of execution. but papamma v. venkayya i.l.r. (1935) mad. 994 : 69 m.l.j. 451 : a.i.r. 1935 mad. 860, made it clear that a pre-decretal agreement not to execute the decree was not in attack of the decree, nor did it vary the terms of the decree, so that, as the pre-decretal agreement related purely to execution of the decree, it could be pleaded. on facts in that case, there was a., pre-decretal agreement between the decree-holder and one of the defendants alone that the; decree against him should not be executed. the agreement was allowed, to be pleaded in bar of the execution against him. the court referred to the.....
Judgment:

K. Veeraswami, C.J.

1. The question in this appeal is whether a pre-decretal agreement made subsequent to the suit could be pleaded in bar of execution. There are two Full Bench decisions of this Court, Chidambaram Chettiar v. Krishna Vathijar I.L.R. (1917) Mad. 233 : 32 M.L.J. 13 and Papamma v. Venkayya I.L.R. (1935) Mad. 994 : 69 M.L.J. 451 : A.I.R. 1935 Mad. 860, which bear on the question. In the earlier case the parties to the appeals in this Court entered into an agreement with the appellant, who submitted to a decree in a suit by the respondent then pending against him, that the former should make an arrangement for satisfaction of such decree within a fixed date, and that the latter should not, before that date, execute or transfer it. The Court by a majority opinion held that the agreement could be pleaded in proceedings taken in execution of decree. Apparently, this decision was understood in subsequent Decisions- as limited to the proposition that a pre-decretal agreement could be pleaded only if it related to the mode of execution. But Papamma v. Venkayya I.L.R. (1935) Mad. 994 : 69 M.L.J. 451 : A.I.R. 1935 Mad. 860, made it clear that a pre-decretal agreement not to execute the decree was not in attack of the decree, nor did it vary the terms of the decree, so that, as the pre-decretal agreement related purely to execution of the decree, it could be pleaded. On facts in that case, there was a., pre-decretal agreement between the decree-holder and one of the defendants alone that the; decree against him should not be executed. The agreement was allowed, to be pleaded in bar of the execution against him. The Court referred to the observation of Pakenham Walsh, J., in Butchiah Chetti v. Tayar Bao Naidu I.L.R. (1931) Mad. 184 : 60 M.L.J. 721 : A.I.R. 1931 Mad. 399, that Chidambaram Chettiar v. Krishna Vathiyar I.L.R. (1917) Mad. 233 : 32 M.L.J. 13, covered agreements which related to execution and not to an agreement which attached the decree itself, and held:

This view which reconciles almost all, if not all, the Madras decisions on the subject, is one in which I venture to express my entire concurrence. The agreement pleaded in the present case is one which relates to execution alone, and does not attack the decree itself, for it is merely an agreement not to execute the decree as against the first judgment-debtor, and nothing more. It follows therefore that the agreement can be pleaded in execution, and that the executing Court can determine whether the agreement is true.

Mulla, in his Code of Civil Procedure, Volume I, 13th Edition, refers to Papamma v. Venkayya I.L.R. (1935) Mad. 994 : 69 M.L.J. 451 : A.I.R. 1935 Mad. 860, as laying down the proposition that ' a distinction should be made between an agreement which related to the mode of execution or satisfaction of a decree and one which had the effect of rendering the decree nugatory and inexecutable in whole or in part and that, while the former may be pleaded in execution, the latter could not be.' But this is not to say that a pre-decretal agreement was held by Papamma v. Venkayya I.L.R. (1935) Mad. 994 : 69 M.L.J. 451 : A.I.R. 1935 Mad. 860, as one in attack of the decree or as one which by itself rendered the decree a nullity or nugatory. A pre-decretal agreement not to execute a decree pre-supposes a decree which is valid and in full force as well as executable. Such an agreement does not, in any way, vary the terms or affect its validity or denies its existence. There may be cases where a pre-decretal agreement possibly involves a fraud practised on Court, on the basis of which it is made to pass a decree. We are not concerned in the instant case with such cases. Here, the agreement, made subsequent to the suit and prior to the decree, was merely an understanding that the decree passed should not he executed. That recognises that such an agreement can well be pleaded, as it relates to execution of the decree and is within the purview of Section 47 of the Code of Civil Procedure.

2. We are aware that in Papamma v. Venkayya I.L.R. (1935) Mad. 994 : 69 M.L.J. 451 : A.I.R. 1935 Mad. 860, the pre-decretal agreement was between the decree-holder and one of the defendants. But that, on principle, could make no difference to the view we have taken.

3. Some question has been raised as to the factum of the pre-decretal agreement. But the finding, in our view, is well-founded.

4. The appeal is dismissed with costs.


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