CHAVA SEETHA RAMAYYA Vs. KADIYALA PATTAYYA

JUDGEMENT

(1.) THIS civil misc. appeal raises an interesting question of law, namely, whether, under Order XXI (21), Rule 2, C. P. C., a decree for the dismantling of a wall, & the delivery of a plot on which the wall stands, to the D. H., can be adjusted after the decree is passed, & the adjustment pleaded 'in bar of execution', though such an adjustment has not been certified to the Ct., & whether in such a case the mere award of a sum of money as costs in the decree would prevent such an arrangement being gone into or would enable the J. D. to escape execution for the costs also till the arrangement Is gone into. The facts are briefly these :

(2.) THE applt. here, Seetharamayya, got a decree for possession of a small strip of land from the resp., Pattayya, in O. S. No. 736 of 1944, & the deft. was asked to give delivery after dismantling the wall standing on that strip of land, & directed to construct a wall on his own land beyond that strip if he liked. The J. D. did not dismantle the wall & deliver the strip of land. So execution was taken up by the D. H. The J. D. obstructed when the amin went with the warrant, according to the D. H.; but, according to the J. D. what happened was that on sighting the amin, the J. D. got four panchayatdars from different villages together & they effected an amicable settlement between him & the D. H., under which the J. D. agreed to pay Rs. 150 towards the costs of the suit to the D. H., & Rs. 150 for the strip of land on which the wall stood, & the D. H. agreed to execute a sale deed in respect of that strip of land in favour of the J. D., & actually wrote out a sale deed, & kept it with him without registering it. The applt. denies that there was any such agreement, as alleged by the J. D., & says what happened was this. The J. D., having obstructed peaceful delivery, it was necessary to obtain police aid. Meanwhile, the D. H.'s wife fell sick, & the D. H. had to attend to her urgently instead of applying to the Ct. at once for police aid for the demolition of this wall & the recovery of the strip of land. According to him, he filed C. M. P. No. 376 of 1947 as soon as his wife was well, & wanted execution to be proceeded with police aid. The J. D. pleaded this arrangement before the Addl. Dist. Munsif, Vijayawada, who heard C. M. P. No. 376 of 1947. The learned Dist. Munsif held that the adjustment pleaded had not been certified within the prescribed time. He also observed, very cryptically & without any discussion, that there were no merits in the counter, & allowed the E. P. to proceed. The J. D. appealed to the Sub Ct., Vijayawada. The learned Subordinate Judge held that, under the ruling in 'Narayanasami v. Rangaswami',, 49 Mad 716, an arrangement like this, not certified by Ct., could not be pleaded regarding decrees where money is payable but could be pleaded in other decrees & should be gone into & a decision given, as, under the P. C. decision in 'Oudh Commercial Bank Ltd., Fyzabad v. Bind Basni Kuar',, 1939 1 MLJ 652, the parties were at liberty to contract as they liked regarding the terms of a decree, & such adjustments could be gone into Under Section 47, C. P. C. So, he set aside the order of the Dist. Munsif & directed a full enquiry into the alleged arrangement & adjustment set up by the J. D., allowing both sides to let in all relevant, oral & documentary evidence they liked to adduce, & directing the appeal costs to abide the result of the remanded E. P. The D. H. has filed this Civil Misc. Appeal against that order of remand.

(3.) THERE is greater point in his next contention, namely, in execution, that, even so, costs, once decreed, become money payable under a decree, &, therefore, under Order XXI (21), Rules 2 & 4, (?) payment or adjustment of money payable even as regards costs in a decree shall not be recognised by any Ct. executing a decree unless it has been certified within the time prescribed, as it is "money payable under a decree of any kind". He said that Order XXI (21), Rules 2 & 4 (?) applied to "a partial discharge" also. The learned counsel for the opposite side has no satisfactory reply to this contention, & I accept it as correct. The ruling in 'Ammaniamma v. Muddappa', : 1944 2 MLJ 336, by a Bench of this Ct., makes it clear. In that view, the lower Ct's order would have to be modified by giving the decree holder full liberty to proceed with the E. P. as regards costs, leaving the other matter, namely, the alleged arrangement regarding the plot of land & the wall, to be gone into by the learned Dist. Munsif at the remanded hearing. Though the judgment debtor contended that he agreed to pay Rs. 150 to the D. H. for costs, that was not an adjustment proper, since Rs. 145 had been awarded as costs in the decree itself, & the balance of Rs. 5 represented only the interest payable. The learned counsel for the J. D. said that his client was always ready to pay the costs. Mr. Rajeswara Rao's contention that, once costs are awarded, a money decree would become part of the complex decree does not appeal to me. Then there will be very few decrees which will ever be covered by adjustments or arrangements, as, in almost very decree, regarding Immovable property etc., there will be an order of costs. But that need not stand in the way of my recognising the force of this contention & allowing execution to proceed for costs.