PUNNEN Vs. SANKARA NARAYANA IYER

JUDGEMENT

(1.) This is an appeal by the judgment debtors in O.S. No. 40 of 1951 of the Tinnevelly Sub Court pending execution in the Kottayam District Court, from an order dismissing their objection to the decree holder's application for execution. When the decree holder applied for execution the judgment debtors filed an objection petition, C.M.P. No. 3179 dated 26.6.1953, contending that there has been an adjustment. The terms of the adjustment pleaded by them provided for payment of the decree amount in instalments. A part of the decree amount was to be paid to two banks, in discharge of the claims, which the said banks had against the decree holder, and the balance was to be paid direct to the decree holder. The court below summarily dismissed the objection petition holding that the agreement set up, even if true, would not amount to an adjustment of the decree and that it would not by itself result in a satisfaction of the decree but was only a variation of the normal execution of the decree. Reliance was placed by the learned Judge for his conclusion on the Notes at pages 2169 and 2170 of Volume II, Chitaley's Code of Civil Procedure, 1950 Edition. The order of the learned Judge is laconic and reads: "The agreement set up, even if true, does not amount to an adjustment of the decree. It does not by itself result in a satisfaction of the decree, but is only a variation of the normal execution of the decree. Chitaley on C.P.C. 1950 Edition, Vol. II pages 2169, 2170. Hence this is dismissed." The appeal is against this order.

(2.) The respondent's counsel contended that the adjustment pleaded by the judgment debtors was only an executory agreement and could not, therefore, be recognised by Court. This is too broad a proposition to be accepted. In the very Notes referred to by the learned Judge it is said at page 2172 (Chitaley's Code of Civil Procedure, Volume II, 1950 Edition):