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Benode Lal Pakrashi Vs. Brajendra Kumar Saha - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1902)ILR29Cal810
AppellantBenode Lal Pakrashi
RespondentBrajendra Kumar Saha
DispositionAppeal allowed
Cases ReferredLaldas Narandas v. Kishordas Devidas
Excerpt:
decree - execution of decree--instalment decree--agreement before decree not to enforce payment of an instalment--part payment--civil procedure coda (act xiv of 1882) section 244--limitation. - ghose and geidt, jj.1. this is an appeal by the judgment-debtor.2. the decree-holders obtained a decree which was for the sum of rs. 29,000 odd in the year 1887. the amount of the decree was payable in ten instalments, the last of the instalments covering the sum of rs. 4,189. it appears that all the nine instalments were duly paid up, and execution was taken out for the last instalment of rs. 4,189. to this execution two objections were raised by the judgment-debtor, the first being that before the decree in question was passed, it had been agreed between the parties that in the event of the judgment-debtor paying up in due time the first nine instalments, the decree-holders would net enforce the last instalment; and, secondly, that the judgment-debtor had paid into the hands of the.....
Judgment:

Ghose and Geidt, JJ.

1. This is an appeal by the judgment-debtor.

2. The decree-holders obtained a decree which was for the sum of Rs. 29,000 odd in the year 1887. The amount of the decree was payable in ten instalments, the last of the instalments covering the sum of Rs. 4,189. It appears that all the nine instalments were duly paid up, and execution was taken out for the last instalment of Rs. 4,189. To this execution two objections were raised by the judgment-debtor, the first being that before the decree in question was passed, it had been agreed between the parties that in the event of the judgment-debtor paying up in due time the first nine instalments, the decree-holders would net enforce the last instalment; and, secondly, that the judgment-debtor had paid into the hands of the decree-holders the sum of Rs. 2,500 in the year 1884 on account of the claim which the latter had against the judgment-debtor, and that therefore the decree-Holders were not entitled to execute the decree for the Bum of Rs. 1,189, and that, if they be held entitled to obtain any relief, they were bound to give credit for the sum of Rs. 2,500 paid to them in the year 1884.

3. The Court below has negatived both the objections, and hence the judgment-debtor has appealed to this Court, the learned Vakil for the appellant contending that the objections raised by the judgment-debtor in the Court below ought to have been given effect to.

4. We are, however, unable to agree with the view that has been I propounded before us on behalf of the appellant. If the agreement which was pleaded as having been come to between the parties, before the decree was made, be given effect to, it would have the effect of nullifying the decree; and it seems to us that upon this single ground the objection could not be entertained. A decree was duly made between the parties, and, if they entered into such an agreement, as is now alleged, it should have been incorporated in the decree. The decree being once made, it must be taken to be conclusive between the parties, and an agreement like the one which has been pleaded could not be given effect to.

5. The learned vakil for the appellant has called our attention to the case of Laldas Narandas v. Kishordas Devidas (1896) I. L. R. 22 Bom. 463., decided by a Full Bench of the Bombay High Court, in support of the view that he has propounded. But it seems to us that the question that was discussed before the Bombay High Court was a question somewhat different from the one with which we are now concerned. There, the question raised was whether the existence and validity of an agreement made between the; parties before an arbitration decree was made, ought to be determined in execution of the said decree under the provisions of Section 244 of the Code of Civil Procedure, or in a separate suit; and it was held that that question should be determined in the course of execution of the decree, and not in a separate suit. The question, however, that we have to determine is whether an agreement like the one which is said to have been entered into by the parties before the decree was made could be given effect to. We are of opinion that it could not be given effect to. We accordingly overrule this objection.

6. As to the other objection, it appears to us that, if the money was paid in 1884 (and it was, according to the story of the judgment-debtor paid in respect of the claim whish the decree-holders had, and upon which claim the decree was obtained in 1887), such payment ought to have been raised in the suit itself, and before the decree was made between the parties. It is apparent that the claim of the appellant in regard to the payment made in 1884 is. now barred by limitation, and it would, we think, be improper to give effect to such a plea-- a plea which, as already stated, ought to have been made in the suit in which the decree was passed.

7. Upon these grounds we overrule both the objections. The result is that the appeal will be dismissed with costs.


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