Subbaraya Iyer and Others vs Ramasawmy Pillai

In the course of executing the decree in O.S. No. 28 of 1903 on the file of the District Court of Trichinopoly obtained upon a deed of

hypothecation the parties entered into an agreement whereby the second defendant was given time to satisfy the decree on condition of his paying

interest at 12 per cent, per annum instead of 9 per cent, per annum and the decree was made executable against the person of the second

defendant as well as by sale of the hypotheca. The court sanctioned the arrangement u/s 257-A of the CPC on 26th July 1905. On August 2nd,

1909, the plaintiff''s legal representatives sought to execute the decree for the unpaid balance by arresting the second defendant. The District Judge

dismissed the application relying on the ruling in Venkatagiri Iyer v. Sadagopachariar (1900) 14 M.L.J 359. It was held in that decision that the

court''s sanction of an agreement between the decree-holder and the judgment-debtor by which the former is benefited does not make it a part of

the decree, but the decree-holder must bring a separate suit to enforce it Bhashyam Iyengar, J. pointed out that a court has no power to vary or

add to its decrees after they are passed except under particular provisions of law, and he quoted in support of his view the opinion of the Privy

Council in Kothagiri Venkatasubbana Row v. Vellanki Venkatrama Row ILR (1899) 24 M. I. that subsequent variations of decrees unless made

u/s 206 or Section 623, Civil Procedure Code, were ultra vires. Their Lordships of the Privy Council observed at the same time that it was open

to the court to treat such a compromise as a rule of court and to stay all further proceedings in the decree against the 3rd defendant who alone

compromised in that case with the plaintiffs except for the purposes of enforcing the compromise.

Now in the present instance the compromise was sanctioned by the court at a time when the Code of 1882 was in force and compromises of

this nature after suit were declared by Section 257-A to be void unless made for consideration and with the sanction of the court.

When execution against the person of the 2nd defendant was applied for in 1909 the CPC of 1908 was in force and the old Section 257-A had

dropped out. Further the old Section 210 had reappeared as Order xx, Rule 11, in a new form containing a provision for a court after the passing

of a decree where and in so far as it is a decree for the payment of money ordering the postponement of payment of the amount decreed on such

terms as to the payment of interest as it thinks fit. Lastly Section 47 of the new CPC corresponding to Section 244 of the old Code had an

additional clause added to it, which permits courts, subject to objections that may be raised on account of limitation or jurisdiction, to treat

proceedings under this section relating to the execution, discharge or satisfaction of a decree as a suit or a suit as a proceeding.

With this alteration of the law the ratio decidendi of the decisions in Venkatagari Iyer v. Sadagopackariar (1600) 14 M.L.J. 359 and R.M.P.L.

Palaniappa Chettiar and Another Vs. Raja Visvanatha Vijaya Kumar Bangaru Tirumalai Savari Naidoo and Another, , has lost its force.

We find no difficulty in following the decisions in Sheo Golam Lall v. Beni Prasad ILR (1879) C. 27, Durga Prasad Banerfee v. Lalit Mehun

Singh Roy ILR (1897) C. 86 and Thakoor Dyal Singh v. Sarju Pershad Misser ILR (1892) C 22, and we think accordingly that the 2nd

defendant, who had the benefit of the arrangement for delay in execution and the order passed sanctioning it, is not at liberty to resile from that

arrangement.

The lower court''s order is reversed, and the case will be sent back to the District Judge for proceeding with the execution application.

The respondent will bear the appellants'' costs in both courts.