Rajappa vs Sagar Krishnappa and Sons

Malimath, J.—This is a decree-holder''s revision petition against the order passed by the Civil Judge at Chitradurga in Ex. Case No. 55 of 1971 on I. A. No. 6. The petitioner instituted the suit to recover certain sums from the respondent That suit ended in a compromise decree under which the plaintiff-decree-holder became entitled to receive a sum of Rs. 43.285-82 from the respondent. A time of six months was granted to the judgment-debtor for paving the decretal amount As the decretal amount was not paid, the decree-holder filed an execution petition. In that execution petition, the judgment-debtor filed his objectlons dated 18-1-1972. The executing Court overruled the objections by observing that there is no substance in the objections as they are not substantiated. That order was challenged in this Court in Execution First Appeal No. 17 of 1972. This Court by its order dated 7th August 1972 allowed the said appeal on the ground that the Civil Judge has not assigned any reasons for rejecting the objections that had been filed by the judgment-debtor. Consequently, the case was remitted to the executing Court for fresh disposal in accordance with law. Alter the case was remitted back to the executing Court, the decree-holder filed an application I. A. No. 6 praying that the question regarding the maintainability of the objections of the judgment-debtor be determined in the first instance before recording the evidence of the parties. The judgment-debtor resisted that application and contended that the matter is such that it cannot be disposed of by hearing arguments on the question regarding the maintainability of the objections filed by him and that he should be given an opportunity of leading evidence in support of his objections. The executing Court dismissed the application I. A. No. 6. The effect of the said order is that the judgment-debtor would be entitled to lead evidence in support of his objections. It is this order that is challenged by the decree-holder in this revision petition.

It was contended by Sri A.M. Farooq, learned counsel for the petitioner that the Court below was not right in permitting the respondent to lead evidence inasmuch as that would amount to giving an opportunity to the Judgment-debtor to lead evidence to vary the terms of the decree. He also contended that the respondent-judgment-debtor cannot lead any evidence in regard to an adjustment or satisfaction which has not been duly certified under Order XXI, Rule 2 of the C.P.C.

The objections of the respondent are two fold. His first objection i9 regarding the executability of the decree on the ground that the same had been obtained by fraud and misrepresentation by the plaintiff-decree-holder. He has further stated that when the defendant wanted to plead bar of limitation and discharge to the extent of Rs. 15-000 by the sale of the property to Ekbhote Nagappa and contest the claim of. interest and otherwise, the decree-holder (plaintiff) assured the judgment-debtor (defendant) that he would give deductions to Rs. 15,000 and interest on interest of Rs. 8.377-20, once he consented to a decree. So far as this objection is concerned, it is clear that the executing Council could not entertain the same. The plaintiff the decree has been obtained by froad and misrepresentaion is not one which the executing Court can go into. As regards the pre-decree agreement regarding deduction, Sri B. K. Ramachandra Rao. learned counsel for the respondent contended that the lodgment-debtor is not precluded from pleading a pre-decree agreement. In support of Ms contention, he relied on a decision of the Full Bench of the Madras High Court in Adapa Papamma and Another Vs. Darbha Venkayya and Others, That was a case in which an agreement not to execute the decree against a particular judgment-debtor was pleaded in opposition to the execution of the decree obtained by the decree-holder. The Madras High Court came to the conclusion that such an agreement would not have the effect of varying the terms of the decree and that therefore, the judgment-debtor is not precluded from pleading and proving such an agreement. But the agreement pleaded by the judgment-debtor in the present case is not similar to the one considered by the Madras High Court The agreement pleaded in the present case is that though the decree may be passed for a particular amount the decree-holder agreed to recover only a smaller amount by giving certain deductions. Such an agreement in my opinion though a pre-decree agreement, has necessarily the effect of varying the terms of the consent decree. The principle laid down by the High Court of Madras cannot therefore, be applied to the facts of the present case,

The decision of this Court in P. Narasimha Iyengar v. Lakkanna (1963) 2 Mys LJ 373 = (AIR 1964 Mys 41) to which my attention was fairly drawn by Mr. B. K. Ramachandra Rao, fully applies to the facts of the present case. In the said decision, this Court laid down as follows:

The validity of a decree cannot be attacked in execution proceedings by a pre-decretal arrangement If the decree is for a certain sum of money, to say that, that is not the amount that is due. but on the other hand, according to certain arrangement prior to the passing of the decree, certain deduction had to be made by the decree-holder which has not been made and hence, the ore-decretal arrangement was that when executing the decree, deduction should be given to that amount, amounts to attacking the decree itself, which is not contemplated in law and is outside the provisions of Section 47.

In the present case, the case of the judgment-debtor is that the decree-holder had agreed to give deduction in respect of two sums viz., Rs. 15,000 and Rs. 8-377-20 though the decree was passed for a larger amount. The agreement pleaded has obviously the effect of varying the terms of the consent decree. Such an objection cannot be entertained by the executing Court Hence, the question of leading evidence to plead such an agreement does not at all arise.

The second objection is in regard same sort of an arrangement that was arrived at after the decree was passed. As there is no certification of adjustment as required under Order XXI, Rule 2 of the Civil P.C. the arrangement pleaded by the judgment-debtor cannot be established by leading evidence, as such evidence is clearly precluded by the express provisions of Order XXI, Rule 2 of the C.P.C.

I am therefore, of the opinion, that the Court below was wrong in permitting the judgment-debtor to lead evidence in support of the two objections raised by him in his objection statement As both the objections are untenable, it is unnecessary to direct the executing Court to hear the question regarding the maintainability of the objections as prayed for by the decree-holder in I. A. No. 6. I have considered these objections and overruled the same.

For the reasons stated above, this revision petition is allowed and the order passed by the learned Civil Judge dated 2-2-1973 is set aside and the Civil Judge is directed to proceed further with the execution of the decree. No costs.