VENKATASUBRAMANY IYER Vs. KORAN KUNNAN AMMAD

JUDGEMENT

(1.) As regards the question of the construction of the bond (Exhibit A), the District Munsif hold that the only remedy open to the plaintiff on default by the defendants was to apply for the execution of the decree mentioned in the bond. The District Judge apparently took the same view. It seems to me clear that, on the true construction of the bond, the document purports to give a two-fold remedy to the plaintiff on failure by the defendants to pay the instalments mentioned in the bond, firls, a right to sue for the balance of Rs. 7,500, secondly, a right to recover the balance by executing the decree. This appears to be the true construction of the document whether the words in default of this are read as meaning in default of payment of the instalments or in default of payments of the lump sum. There is an express agreement to pay the lump sum on failure to pay the instalments and an express agreement that the decree shall be kept alive and the rights of the plaintiff in execution of the decree preserved.

(2.) It has been contended on behalf of the defendants that inasmuch sis under the terms of the bond the relation of judgment-creditor and judgment-debtor still subsists the bond is an agreement to give time for the satisfaction of a judgment-debt, and the sanction of the court not having been obtained, Sction 257-A of the Civil P. C. renders the agreement void.

(3.) Section 257-A might, no doubt, be construed as having the effect of rendering the agreement void only in so far as it purported to give time so that, notwithstanding the agreement, the judgment-debtor would not be entitled to set up the agreement as a bar to the judgment-creditor's rights in execution, whilst the judgment-creditor, on the other hand, would be entitled to enforce an independent contract to pay the judgment-debt which was supported by consideration. But it seems to me that so to construe the section would be to defence the object of the legislature, viz., the protection of judgment-debtors. I assume in the present case that the contract to pay is supported by a real consideration. Still it is a contract to pay the amount of the judgment-debt with a stipulation that it shall not be payable at the time when, under the decree, it became payable. The relation of judgment-creditor and judgment-debtor still exists by the express agreement of the parties. The debt is still enforceable as a judgment-debt. This being so, I feel it impossible to construe the bond in question otherwise than as an agreement to give time for the satisfaction of judgment debt. The sanction of the court not having been obtained, I think the bond is invalid. If, as in Tukaram V/s. Anantbhat I.L.R. 25 B. 252, the effect of the mortgage bond had been to extinguish the rights of the judgment-creditor under the decree and to substitute therefor the rights given him by the mortgage bond, the agreement clearly would not be an agreement to give time for the satisfaction of a judgment-debt because, the effect of the agreement would be to put an end to the judgment-debt. In the present case, there is an express agreement to preserve the judgment-creditor's rights in execution and thus keep the judgment-debt alive. With all respect to the learned judges who decided the case reported in Juji Kamti V/s. Annai Bhatta I.L.R. 17 M. 382, although I think it was rightly held in that case that the contract to pay by instalments was not void, I confess I cannot follow the reasoning on which the conclusion appears to be based. The judges observe that the scheme of the Code of Civil Procedure suggests that the intention of Section 257-A, was to render an agreement to pay the amount of the judgment-debt by installments void only in so Car as it affects the right to execute the decree. But in that case the consideration for the new promise to pay was the surrender by the judgment-creditor of his right in execution of the decree. The decree was extinguished by agreement between the parties, and being so, I fail to see how any question as to how the section affected the rights of the execution creditor in execution of the decree was material.