SAIT HEMRAJU RATANCHAND FIRM Vs. KATTA SUBRAHMANYAM

JUDGEMENT

(1.) In the Letters Patent Appeal against the judgment of the former Chief Justice, the question which falls for determination is whether evidence of an oral predecretal agreement between the decree-holder and the judgment-debtors to execute a compromise decree against some of the judgment-debtors, is admissible.

(2.) The facts of this case are that the decree-holder filed O. S. 96/1948 on the file of the Subordinate Judge, Amalapuram for recovery of certain amount due from defendants 1 to 4 A com-promise decree was passed thereon on 3-11-1949 under which the defendants had to pay Rupees 6 917-9-3 with interest thereon at 16-78th per cent per annum from 9-11-1948 and costs. Under Clause (2) of that decree if the defendants paid a sum of Rs. 7,521-1-0 with interest at 6 p. c. per annum within six months from that date, viz., 3-11-1949, the decree-holder should accept the said amount in full discharge of the decree. After the decree, the decree-holder having realised certain amounts from defendants 1 and 3, filed an execution petition for recovering the balance from defendants 2 and 4. In answer to this execution petition, defendants 2 and 4 pleaded that there was an oral predecretal agreement thereunder the parties agreed that the decree should be executed in the first instance against defendants 1 and 3 only and thereafter for the balance against defendants 2 and 4.It was found by the learned Subordinate Judge, on the evidence led in support of the oral agreement, that the said predecretal agreement was true. He accordingly dismissed the execution petition. The decree-holder appealed and in the appeal two points were raised, namely, (1) that the finding of the learned Subordinate Judge is not supported by the evidence in the case and (2) in the case of a compromise decree, the principle accepted by the decision in Papamma v. Venkayya, ILR 58 Mad 994: (AIR 1935 Mad 860) (FB), that a pre-decretal arrangement not to execute the decree could be pleaded cannot be invoked.The learned Chief Justice, after going through the oral evidence adduced in the case, held that the oral pre-decretal agreement set up by the judgment-debtors was made out and in that view found no justification to differ from the learned Subordinate Judge. On the 2nd question raised before him, applying the principle laid down in the case cited above, the learned Chief justice held that he could not see any difference between a decree made by court after adjudication and a compromise decree and that in either case, it was a decree made by a court, though in the case of a compromise decree an appeal will not lie and the decree cannot be modified except by the consent of parties.In all other respects, the decree binds the parties against whom it is made, and in execution thereof they cannot go behind the decree. He was further of the view that the decree was kept intact and if the agreement relates only to the execution of the decree, the circumstance that in one case it is a compromise decree and in the other a decree made after adjudication is not of much relevance. If so, if a predecretal agreement where-under the decree-holder agreed not to proceed against certain judgment-debtors could be pleaded in execution, there was no reason why a predecretal agreement thereunder the decree-holder agreed to proceed against some of the judgment-debtors after he executed the decree against others could be put on a different footing. In that view, the appeal was dismissed.

(3.) Learned Advocate for the appellant, Shri Chandrasekhara Sastri, does not now challenge the finding relating to the truth and existence of the oral predecretal agreement. His only contention is that such an agreement, being an oral one having regard to the provisions of Section 92 of the Evidence Act, is not admissible, inasmuch as under the agreement the decree-holder has first to execute against defendants 1 and 3 and then only against defendants 2 and 4, while under the compromise, the decree was executable against all the defendants equally. This predecretal agreement has the effect of varying or altering a compromise decree, which stands on no higher footing than a written agreement with the seal of the court affixed thereto. If so, it is hit by the provisions of Section 92 of the Evidence Act.