SUBBARAYA IYER Vs. RAMASAWMY PILLAI

JUDGEMENT

(1.) In the course of executing the decree in O.S. No. 28 of 1903 on the file of the District Court of Trichinopoly obtained upon a deed of hypothecation the parties entered into an agreement whereby the second defendant was given time to satisfy the decree on condition of his paying interest at 12 per cent, per annum instead of 9 per cent, per annum and the decree was made executable against the person of the second defendant as well as by sale of the hypotheca. The court sanctioned the arrangement under Section 257-A of the Code of Civil Procedure on 26th July 1905. On August 2nd, 1909, the plaintiff s legal representatives sought to execute the decree for the unpaid balance by arresting the second defendant. The District Judge dismissed the application relying on the ruling in Venkatagiri Iyer v. Sadagopachariar (1900) 14 M.L.J 359. It was held in that decision that the court s sanction of an agreement between the decree-holder and the judgment-debtor by which the former is benefited does not make it a part of the decree, but the decree-holder must bring a separate suit to enforce it Bhashyam Iyengar, J. pointed out that a court has no power to vary or add to its decrees after they are passed except under particular provisions of law, and he quoted in support of his view the opinion of the Privy Council in Kothagiri Venkatasubbana Row v. Vellanki Venkatrama Row (1899) I.L.R. 24 M. I. that subsequent variations of decrees unless made under Section 206 or Section 623, Civil Procedure Code, were ultra vires. Their Lordships of the Privy Council observed at the same time that it was open to the court to treat such a compromise as a rule of court and to stay all further proceedings in the decree against the 3rd defendant who alone compromised in that case with the plaintiffs except for the purposes of enforcing the compromise.

(2.) Now in the present instance the compromise was sanctioned by the court at a time when the Code of 1882 was in force and compromises of this nature after suit were declared by Section 257-A to be void unless made for consideration and with the sanction of the court.

(3.) When execution against the person of the 2nd defendant was applied for in 1909 the Code of Civil Procedure of 1908 was in force and the old Section 257-A had dropped out. Further the old Section 210 had reappeared as Order xx, Rule 11, in a new form containing a provision for a court after the passing of a decree where and in so far as it is a decree for the payment of money ordering the postponement of payment of the amount decreed on such terms as to the payment of interest as it thinks fit. Lastly Section 47 of the new Code of Civil Procedure corresponding to Section 244 of the old Code had an additional clause added to it, which permits courts, subject to objections that may be raised on account of limitation or jurisdiction, to treat proceedings under this section relating to the execution, discharge or satisfaction of a decree as a suit or a suit as a proceeding.