MATHUKUTTY Vs. LAKSHMIKUTTY AMMA

JUDGEMENT

(1.) The appeal filed by the judgment debtor is directed against an order passed in execution of the decree in O. S. 45 of 1960 'The suit was based on a promissory note dated 11-9-1957. In the written statement the defendant had pleaded that he is an agriculturist entitled to the benefit of Act 31 of 1958. The plaintiff and the defendant filed a compromise petition dated 23-11- 1960 on the basis of which the decree of the same date was passed. In Para.1 of the compromise petition the defendant expressly withdrew all his contentions in the written statement. The compromise decree provided for payment of interest at the contract rate namely 12% per annum for the period prior and subsequent to the suit. After the amendment Act 2 of 1961 the judgment debtor claimed the benefits thereunder. The plea of the judgment debtor has been overruled by the lower court on the ground of res judicata. The suit itself was instituted after the commencement of Act 31 of 1958 and before the amendment Act of 1961. The compromise decree also was passed before the passing of the amendment Act 2 of 1961. The learned Judge has taken the view that since the judgment debtor specifically withdrew his plea that he was an agriculturist in the compromise petition he is precluded from raising the same question in execution and disallowed relief to him. The plea on behalf of the judgment debtor was that the compromise decree cannot operate as res judicata.

(2.) If the words ''heard and finally decided" in S.11 of the Civil Procedure Code are strictly and literally interpreted, it follows that there must be an actual hearing by the court of the issue or the suit and a decision thereon by the court. If so no consent decree can operate as res judicata. The Supreme Court in Subba Rao v. Jagannadha Rao AIR 1967 SC 591 in holding that consent decree cannot operate as res judicata under S.11, CPC. observed:

(3.) Judged in the light of the above principles we have to uphold the plea of estoppel raised by the decree holder. The judgment debtor had claimed the benefits of Act 31 of 1958 based on his status as an agriculturist. This was disputed by the decree holder and the compromise was after withdrawing the plea specifically. The compromise decree has therefore proceeded on the basis that the judgment debtor is not an agriculturist. This is quite sufficient to hold that it is not open to him to repeat the same plea in execution even after Act 2 of 1961. The decision in Subba Rao v. Jagannadha Rao AIR 1967 SC 591, does not in any way help the judgment debtor. It has only said that a consent decree cannot operate as res judicata either under S.11 or otherwise. The plea of estoppel arising from a consent decree was overruled on the ground that it was not raised. There is also the further fact that the" compromise decree in the said case was on the assumption that the judgment debtor was an agriculturist entitled to benefit under the Madras Agriculturists Relief Act (4 of 1938) as it stood before its amendment by Act 23 of 1948. The decision therefore cannot in any way affect the view that we are taking in this appeal. We therefore hold that the appeal is without substance and dismiss the same. No costs.