PERUMALSWAMI CHETTIAR Vs. RAJAMMAL

JUDGEMENT

(1.) A recital of the facts which have led to this litigation will show the chequered history through which it has proceeded. Defendants in O. S. No. 23 of 1940 on the file of the Principal Subordinate Judge, Salem, are appellants before us, That was a suit on a mortgage for realisation of a certain amount by sale of the hypotheca. A preliminary decree was passed on 27-3-1941 giving time to the defendants to pay the amount with interest. It is stated by the defendants, but denied by the plaintiff's legal representatives, that on 14-5-1941 there was a settlement between the parties by which the plaintiff was to receive a sum of Rs. 3600 in full satisfaction of the whole amount due to him and accordingly on that date a sum of Rs. 600 was received by the plaintiff. It is further stated by the defendants, but again denied by the plaintiff's legal representatives that on 26-5-1941 a sum of Rs. 3000 was also paid to the plaintiff. On 23-6-1941 the plaintiff-decree-holder filed a memo in the lower court reporting settlement out of the court. There was also another memo filed by him for entering full satisfaction of the amount due under the decree. Both these memos were returned to the plaintiff by the court for getting the signature of the plaintiff's pleader, because the memos did not contain the pleader's signature. These memos were not however re-presented to the court. I. A. No. 460 of 1941 was thereafter filed on 11-8-1941 by the judgment-debtors under Order 23, Rule 3 and Order 21, Rule 2, C. P. C. The first and second prayer in that application, respectively were that the suit had been settled out of the court and that towards the decree a certain amount had-been received by the decree-holder and so the decree has been satisfied. On 20-10-1941 that application was dismissed, and an appeal, A. S.' No. 364 of 1941 against that decision taken to the District Court, was dismissed by the learned District Judge on the ground that as there was a preliminary decree, no settlement out of the court could be recognised. Against the decision of the District Court, C. M. S. A. No. 172 of 1943, was filed in this court. This court also confirmed the decision of the District Court and dismissed the C. M. S. A. I. A* No. 391 of 1943 dated 26-8-1943 was thereafter filed in the lower court by decree-holder for passing a final decree. While that application was pending on 16-11-1953, it is alleged by the defendants, but denied by the decreeholder's legal representative that a, sum of Rs. 100 was paid to the decree-holder. Thereafter under Order 21, Rule 2, C. P. C. the decree-holder filed three memos (1) to record full satisfaction, (2) to report settlement (3) and to put an end to the Vakalat in favour of his pleader. The judgment-debtors filed a counter stating that such a settlement had taken place but by the time the matters came up for disposal, the decree-holder resiled from the earlier position and filed I. A. No. 692 of 1944 stating that the earlier petitions might be rejected. All these were heard together by the lower court. The Court rejected the three rnemos filed by the decree-holder, as well as I. A. No. 134 of 1944 filed by the judgment-debtors under Order 21, Rule 2, C. P. C. on 162- 1944 for entering full satisfaction. On the same date the court passed a final decree for sale of the hypolheca on the groual that the defendants had not paid the amount as contemplated in the preliminary decree. An appeal was filed against the decision in the I. A. to the District Court which was numbered as C. M. A. No. 69 of 1945. The C. M. A. shared the same fate of dismissal as the 1. A. Against that C. M. A., C. M. S. A. No. 124 of 1946 was filed in this court. Viswanatha Sastri J. who heard that second appeal dismissed it. The reason given by the learned Judge was that if the application was one under Order 23, R, 3, C. P. C., (viz.), a settlement of the suit before the decree, then under Order 43, R, l(m), C. P. C., there was only one appeal against rejection of the application by the lower court, and that no second appeal lay. If the application should be deemed to be under Order 21, Rule 2, C. P. C., then it was premature because the final decree had not been executed. The learned Judge also found that the decree-holder was putting forward inconsistent pleas at various stages and therefore disallowed the costs of the respondent throughout.

(2.) Now the application out of which this present C. M. A. is preferred to this court is R, E. P. No. 169 of 1950 filed in the lower court by the decree-holder's legal representatives for sale of the hypotheca in execution of the final decree. In R.E.P. the judgment-debtors contended that there had been a settlement of the decree in Nov. 1946. Holding that under Order 21, Rule 2, C. P. C. the alleged payments had not been made to the decree-holder within 90 days of the filing of the application, the lower court disallowed the' judgment-debtors' objection and ordered execution of the final decree. Against that order the present C. M. A. is filed in this court.

(3.) According to -- "Papamma v. Venkayya", AIR 1935 Mad 860 (A), a Full Bench decision of this court, it is open to a judgment-debtor to plead a pre-decretal agreement which does not attack the decree but which states that the decree cannot be executed under certain condition or it can be executed only in part. Such an agreement is not affected by Section 92, Evidence Act as it does hot amount to a modification, alteration or variation of the decree. Now what the appellants want to contend is that, prior to the passing of the final decree on 23-41945 there was an agreement by which certain amounts were received by the plaintiff in full quit, and as he now claims the entire sum in this suit, the decree Is not executable. Following the decision of the Full Bench of this court, we are of opinion that such an agreement can be pleaded by the judgment-debtors in execution of the decree, for it is not the case of the judgment-debtor that after the final decree was passed, any amount is paid to the decree-holder or his legal representatives. Their contention is that payments were made to the decree- holder on 14-5-1941, 26-5-1941 &, 16-11-1943. All these payments which were alleged to have been made to the decree-holder by the judgment-debtors should be deemed to be payments made antecedent to the final decree.