RAJAPPA NAGUSA MEHAEWADE Vs. SAGAR KRISHNAPPA AND SONS

JUDGEMENT

(1.) 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-decreerholder became entitled to receive a sum of Rs.43,285-82 from the respondent. A tune of six months was granted to the judgment-debtor for paying 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 objections dt. 18-1-1972. The executing Court over-ruled 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 dt.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. After 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.

(2.) It was contended by Sri A. M. Farooq leaded 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 CPC.

(3.) The objections of the respondent are two-fold. His first objection 13 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 Court could not entertain the same. The plea that the decree has been obtained by fraud and misrepresentation 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 judgment-debtor is not preluded from pleading a pre-decree agreement. In support of his contention, he relied on a decision of the Full Bench of the Madras High Court in Adappa Papamma v. Darbhd Venkayya, AIR l935 Mad. 860. 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 conculsion 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 ageeement 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 agraad 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.