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Hukum Chand Oswal Vs. Taharunnessa Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1889)ILR16Cal505
AppellantHukum Chand Oswal
RespondentTaharunnessa Bibi and ors.
Cases Referred and Gunamaui Dasi v. Prankishori Dasi
Excerpt:
civil procedure code, 1882, section 457-a - agreement for, or to give, time for satisfaction of judgment-debt--agreement without sanction of court--illegal contract--contract act (ix of 1872), section 23--consideration. - .....dismissed by both the courts below, upon the ground that under section 257-a of the code of civil procedure the agreement entered into by the bond, providing for the payment of a larger interest than that payable under the decree, is void, the bond having been executed without the sanction of the court which passed the decree.4. we think that the lower courts have not taken a right view of the law. it seems to us that it is only in the event of an application being made to enforce the agreement entered into between the parties under the bond, in the course of the execution of the decree, that an objection like that now raised could have been successfully made. section 257-a finds its place in the procedure code in the chapter headed, 'of the execution of decrees' under division e 'of.....
Judgment:

Prinsep and Ghose, JJ.

1. A decree was obtained by the plaintiff against the defendant No. 1, as the legal representative of one Darwar Buksh, in respect of a certain sum of money. The decree provided that the amount was payable in instalments with interest at a certain rate. The defendant No. 1, however, failed to pay in accordance with the terms of the decree; and the plaintiff thereupon accepted a bond executed by the father of defendant No. 1, viz., Tarikulla, as surety for the debt. But nothing apparently came out of this transaction, and eventually a bond was executed on the 18th Bhadro 1289, both by defendant No. 1 and Tarikulla, making themselves jointly liable for the balance of the decretal money with interest at Rs. 18-12-0 per cent, per annum. The original decree is not forthcoming, but there does not seem to have been any dispute between the parties in the lower Courts as regards its terms, excepting however in one particular, viz., as to the rate of interest decreed. The Lower Appellate Court, upon the evidence, has found that the interest payable under the decree was Rs. 4 per cent, per annum, whereas that covenanted to be paid under the bond of the 18th Bhadro 1289 was, as already mentioned, Rs. 18-12-0.

2. The present suit is brought upon the bond of the 18th Bhadro 1289 both against defendant No. 1 and the heirs of Tarikulla, he having in the meantime died.

3. The suit has been dismissed by both the Courts below, upon the ground that under Section 257-A of the Code of Civil Procedure the agreement entered into by the bond, providing for the payment of a larger interest than that payable under the decree, is void, the bond having been executed without the sanction of the Court which passed the decree.

4. We think that the lower Courts have not taken a right view of the law. It seems to us that it is only in the event of an application being made to enforce the agreement entered into between the parties under the bond, in the course of the execution of the decree, that an objection like that now raised could have been successfully made. Section 257-A finds its place in the Procedure Code in the chapter headed, 'Of the execution of decrees' under division E 'Of the mode of executing decrees,' and there can, therefore, be no reasonable doubt that what the Legislature had in view in framing that section was simply to prohibit the enforcement of an agreement of the kind mentioned therein, if made without the sanction of the Court, in execution of the decree; but it could never have been intended to take away a right which parties certainly possess of entering into a fresh contract, either for the payment of the judgment-debt, to give time for such payment, or for the payment of a, larger sum than what may be covered by the decree, if it be for a proper consideration. In the present case the creditor agreed to give to the debtor more time for the payment of the decretal money than what the decree actually allowed; and the larger rate of interest agreed to be paid was evidently the consideration for the giving of such time. This consideration was certainly lawful and there can, therefore, be no valid objection to the agreement being enforced.

5. It was however contended, on the part of the respondent, that, under Section 23 of the Contract Act, the consideration for the agreement was not lawful, because it was forbidden by law, or was of such a nature that, if permitted, it would defeat the provisions of Section 257-A of the Code of Civil Procedure. We are unable to accept this contention In the first place, we are not aware of any law by which such a consideration, as there was for the bond in this case, is forbidden; and, in the second place, we do not think that 'if permitted' it would defeat the provisions of Section 257-A. The words 'any law' as mentioned in Section 23 of the Contract Act, we are inclined to think, refer to some substantive law, and not to an adjective law such as the Procedure Code is. But whether this is so or not, we fail to see how the object, with which Section 257-A was framed, would be defeated, if the contract in question were enforced, that object being, as it seems to us, simply to avoid the inconvenience and delay which would arise if parties were allowed to bring, before the Court executing a decree, matters not covered by it and which had not become part of the decree itself by express sanction of the Court.

6. It was further contended on behalf of the respondent that, inasmuch as the satisfaction of the decree was not certified to the Court, there was no consideration for the bond, and it would still be open to the decree-holder to enforce the decree. There is nothing on the record showing whether satisfaction of the decree was certified or not; but assuming that it was not, we do not think that it can be rightly said that there was no consideration for the contract; and it seems to us that if, notwithstanding the acceptance of the bond by the creditor in lieu of the decree, he enforces the decree, there is a remedy in the hands of the debtor to recover back from the creditor the money realized in execution of the decree with such damages as he might have sustained by reason of the wrongful act of the creditor.

7. The view that we take of this case is supported by the cases of Jhabar Mahomed v. Modan Sonahar I.L.R. 11 Cal. 671, Sellamayyan v. Muthan I.L.R. 12 Mad. (31), Ramghulam v. Tanki Rai I.L.R. 7 All. 124, and Gunamaui Dasi v. Prankishori Dasi 5 B.L.R. 223, and we may say that we are not prepared to follow the view which the Bombay High Court has laid down on the subject.

8. We accordingly are of opinion that the suit will lie, and that, therefore, it must be returned to the Court of First Instance to be tried on the merits. The plaintiff is entitled to his costs in this Court and the Lower Appellate Court, and he is entitled also to a refund of the stamp-fee on the petitions of appeal to this Court and to the District Judge.


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