S. SATYANARAYANA SUBUDHI Vs. Y. V. RAMANA MURTY

JUDGEMENT

(1.) The petitioner obtained a decree in S.C.S. No. 146 of 1956 on the file of the District Munsif, Sompeta against certain persons. He filed. Execution Petition No. 69 of 1961 against two judgment-debtors. The second judgment-debtor pleaded that the decreeholder had entered into an agreement not to execute the decree against him. Oral and documentary evidence was let in. The learned District Munsif, who dealt with the Execution Petition, held on the evidence that it was clearly proved by an admission of the decreeholder himself as P.W. 1 in the witness-box that he had represented to the second judgment-debtor that he (decreeholder) would try to realise the decretal amount first from the first judgment debtor and that, in case he failed to so realise it, he will then proceed against the second judgment-debtor. The learned District Munsif also found that the decreeholder had not exhausted his remedies against the first judgment-debtor and that therefore, the Execution Petition was not tenable. The decreeholder filed this revision petition praying to set aside the above order.

(2.) The learned Counsel for the petitioner relies on the decision of the Assam High Court in Suresh Chandra v. Asutosh Dutta,A.I.R. 1960 Assam 24. wherein it was held that, when a decree for ejectment was passed and the decreeholder entered into a compromise with the judgment-debtor not to eject him for five years and when that compromise had not been certified, it could not be given effect to when the decreeholder took out execution for ejection of the defendant even before the expiry of five years. On the other hand, it was held by a Full Bench of the Madras High Court in Papamma v. Venkayya,(1935) 69 M.L.J. 451 : I.L.R. 58 Mad. 994 : A.I.R. 1935 Mad. 860. that an agreement not to execute a decree against a particular judgment-debtor did not vary the terms of the decree and could be pleaded in execution and that the Executing Court could determine whether the agreement was true.

(3.) The agreement in the present case could be pleaded by the second judgment-debtor in view of the above decision of the Madras High Court which is Binding on me. I see no reason to disagree with the finding of the lower Court.