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Gajanand Chowdhury Vs. Haribux Lahoti and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1943Cal634
AppellantGajanand Chowdhury
RespondentHaribux Lahoti and ors.
Cases ReferredRaghupathi Rayadu v. Garapati Pichayya
Excerpt:
- .....application by the judgment-debtors under order 21, rule 2, civil p.c., for notice to issue to the decree-holder calling upon him to show cause why an adjustment of the decree should not be re-corded as certified. the decree-holder on 30th august 1939 obtained a decree in terms of the compromise for rs. 4750 and interest. on 14th december 1940 in execution of the decree he attached shares belonging to the petitioners which are said to be worth more than rs. 67,000. the terms of the adjustment are said to have been arrived at on 1st march 1941, to the effect that the judgment-debtors would pay rs. 4500 in full satisfaction of the decree by the end of may 1942 when they anticipated that they would be in funds on the conclusion of a partition suit. that sum is said to have been tendered on.....
Judgment:
ORDER

Mcnair, J.

1. This is an application by the judgment-debtors under Order 21, Rule 2, Civil P.C., for notice to issue to the decree-holder calling upon him to show cause why an adjustment of the decree should not be re-corded as certified. The decree-holder on 30th August 1939 obtained a decree in terms of the compromise for Rs. 4750 and interest. On 14th December 1940 in execution of the decree he attached shares belonging to the petitioners which are said to be worth more than Rs. 67,000. The terms of the adjustment are said to have been arrived at on 1st March 1941, to the effect that the judgment-debtors would pay Rs. 4500 in full satisfaction of the decree by the end of May 1942 when they anticipated that they would be in funds on the conclusion of a partition suit. That sum is said to have been tendered on 2nd April 1942, and rejected by the decree, holder, who later sued the petitioners in Bikaneer to recover the decretal sum. An interim injunction has been granted by this Court restraining the decree-holder from proceeding with the suit in Bikaneer pending the hearing of this application. Two preliminary objections have been taken: (i) That the alleged adjustment was an oral agreement varying the decree of which evidence is inadmissible under Section 92, Evidence Act, and (ii) that the alleged agreement which is relied upon as an adjustment of the decree was arrived at on 1st March 1941, and since the judgment-debtors made no application under Order 21, Rule 2, Civil P.C., within 90 days the present application is barred under Article 174, Limitation Act.

2. The question whether evidence to prove an oral adjustment is admissible has been the subject of conflicting decisions. It is argued on the one hand that a decree is a matter required by law to be reduced to the form of a document and that an oral agreement adjusting a decree varies, adds to, or subtracts from its terms. That view was taken by Walsh J., of the Allahabad High Court in Lachmandas v. Baba Ramnath Kalikamliwala ('22) 9 A.I.R. 1922 All. 13 where the learned Judge expresses his opinion but states that it was 'strictly speaking not necessary to decide this question.' The view then taken has not been accepted in a subsequent decision of the same Court, but it has been followed by the Madras High Court in Rajah of Kalahasti v. Venkatadri Rao ('27) 14 A.I.R. 1927 Mad. 911 and dissented from by the same High Court in Ramanarasu v. Venkata Reddi ('33) 20 A.I.R. 1933 Mad. 28. The Calcutta High Court so far back as 1914 in Debendra Narain Sinha v. Sourindra Mohan Sinha ('14) 1 A.I.R. 1914 Cal. 697 took the view that the words 'any matter required by law to be reduced to the form of a document' in Section 92 referred only to deposited documents and not to a decree to which the words 'the parties to any such instrument' seem inapplicable. That view has been consistently followed by this Court and also prevailed in the High Court of Lahore, Bombay and Rangoon, the decisions are reported in Abdul Karim v. Hakam Mal Tani Mal ('33) 20 A.I.R. 1933 Lah. 806, Kalyanji Dhana v. Dharamsi Dhana & Co. ('35) 22 A.I.R. 1935 Bom. 303 and Ma Shwe Pee v. Mg. San Myo ('28) 15 A.I.R. 1928 Rang. 316 and, with respect, that is the view which appears to me to be correct. The objection on the ground of limitation cannot, in my opinion, be sustained.

3. The terms of the agreement for an adjustment are set out in para. 5 of the petition. The decree-holder it is said agreed to accept Rs. 4500 in full satisfaction of his decree provided the payment was made to him by the end of May 1942. It was further agreed that there would be no adjustment until and unless the defendants were ready to pay the whole sum in one payment, and that the judgment-debtor would not be entitled to treat it as an agreement for adjustment, nor apply for the adjustment to be certified until the amount was tendered. Prom this it appears that the terms were settled in March 1941, but it did not become an adjustment so as to entitle the judgment-debtors to apply under Order 21, Rule 2 until tender was made on 2nd April 1942. This application has been made within 90 days of that date and therefore it is not barred. The agreement is similar to the agreement discussed in the case reported in Raghupathi Rayadu v. Garapati Pichayya ('35) 22 A.I.R. 1935 MAD. 581 where it was held that the application was within time. The preliminary points are accordingly decided in favour of the applicants but inasmuch as the facts alleged by them are directly contradicted by the decree-holders, I direct that the matter be tried on evidence, and the costs of the preliminary objections may be dealt with by the learned Judge who deals with the remainder of the application. The interim injunction will continue.


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