LAWS(KER)-1986-6-24

FRANCIS MATHEW Vs. BANK OF MADURA LTD

Decided On June 17, 1986
FRANCIS MATHEW Appellant
V/S
BANK OF MADURA LTD. Respondents

JUDGEMENT

(1.) Revision petitioners challenge the order of the executing court in refusing to amend the decree. Their contention is that they are liable to pay interest only at the rate of 6 per cent per annum subsequent to the decree and the court erred in granting interest at 20.5 per cent per annum. Another contention is that the decrees passed in the suits are not in compliance with O.34 of the CPC. It is pointed out that preliminary decree and final decree were not passed in these suits for enforcing the mortgages and hence decrees are in-executable. Counsel for the respondent decree holder contended that having agreed to a consent decree, it is not open to the revision pensioners to raise the aforesaid objections before the executing court.

(2.) The dominant question to be considered is as to whether the revision petitioners can challenge the decrees having consented to it. The foundation of a compromise lies in two aspects of public policy: the need for determining the dispute and the desirability of parties coming to an agreement out of their bargains. When a compromise is embodied in a judgment, both the aspects are present. After having entered into a compromise which is embodied in the judgment it is often an exercise in futility to retract from the same on insufficient grounds. A compromise may be impeached on the ground of incapacity of the parties to enter into the agreement. It may be bad if a minor not represented by a guardian, enters into a compromise. The compromise may also be vitiated by mistake either due to misrepresentation, fraud, coercion or undue influence. There may be a compromise which is ab-initio illegal or a compromise of a dispute which gives rise to questions of illegality. The compromise reached between the parties in the cases in hand does not come under any of the above category. Petitioners (Judgment debtors) were represented by their advocates and so it cannot be said that they were not aware of the import of S.34 CPC. So it is not possible to hold that the compromise can be wholly ignored by the court of law. The Rules concerning the effect of judgments obtained adversely apply with equal force to those obtained by consent. A party against whom a judgment has been passed after contest can only challenge the same by filing appeal. This is equally so in the case of a judgment as a result of compromise. Therefore, the question that arises for consideration is as to whether the petitioners having entered into the compromise can assail it in the execution proceedings.

(3.) Petitioners did not raise a contention that the claim of interest in the plaint cannot be allowed and that the plaintiff can be awarded interest after the decree only at 6 per cent per annum. In the counter they have no case that they took loans for agricultural purposes and therefore interest after the decrees cannot exceed 6 per cent, On the other hand, petitioners fully agreed to the entire claim of the plaintiff when they filed compromise. To attract the first proviso to S.34 CPC., petitioners ought to have raised the contention that they obtained the loan from the respondent Bank for a noncommercial purpose. As there is no such plea the same point cannot be raised in execution.