Subbaraya Iyer and Others vs Ramsawmi Pillai

In the course of executing the decree in Original Suit 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 257A of the CPC on July 26th, 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. Sodagopa Chariar 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. Bashyam Iyenger, 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 Kotagiri Vencatasubbamma Row v. Vellanki Venkatrama Row 24 M.P 1 that subsequent variations of deorees 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 third defendant who alone compromised in that

case with the plaintiffs except for the purpose 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 257A to be void unless made for consideration and with the sanction of the Court.

When execution against the person of the second defendant was applied for in 1909, the CPC of 1908 was in force and the old Section 257A

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 in thinks fit. Lastly, Section 47 of the new Coda of Civil Procedure, 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 Venkatagiri Iyer v. Sadagopachariar ` and Palanippa Chettiyar v. Sayari

Naidoo 18 M.L.J. 548 : 4 M.L.T. 233 has lost its force.

We find no difficulty in following the decisions in Sheo Golam Lall v. Beni Prosad 5 C.P 27 : 4 C.L.R. 29; Durga Prasad Banerjee v. Lalit

Mohan Singh Roy 25 C.P 86 and Thakoor Dyal Singh v. Sarju Pershad Misser 20 C.P 22 and we think accordingly that the second 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 appellant''s coats in both Courts.