DEBENDRA NARAIN SINHA Vs. SOURINDRA MOHAN SINHA

JUDGEMENT

(1.) This is an appeal by one of the judgment-debtors against an order for execution of a mortgage-decree. The final decree in the mortgage suit was made by consent of parties in this Court on the 20th August, 1909. One of the terms of the consent decree was to the effect that if a sum of Rs. 1,10,000 was paid to the plaintiffs on or before the 16th April 1910 in part satisfactions of the decree, the plaintiffs would not be entitled to put the decree into execution or apply for sale of the mortgaged premises till the 31st July, 1911. This sum was paid and on the 3rd April, 1912, the decree-holders applied for recovery of the balance of the judgment- debt by execution of their decree. To this application an objection was taken by the judgment- debtor, now appellant before us, on the ground that execution could not proceed, as the decree-holders had agreed not to execute the decree for a period of twelve years. The objection may be best stated in the words of the judgment-debtor himself : " after the settlement, in presence of several men of position, the decree-holders expressly stated to these judgment-debtors, and the judgment-debtors believed in their words, and the belief was strengthened by their subsequent conduct, that though only two years time for payment was stipulated in the sulehnama, yet in reality no attempt would be made to realise the decretal amount by the sale of the mortgaged properties within twelve years. That is, so long as the decree could be legally kept alive, so long it would be kept (unexecuted) : only, in order to keep alive the decree, the decree-holders would take such steps as would be required to keep the decree alive." The Subordinate Judge has not taken evidence to determine whether the alleged agreement was made between the parties. But he has overruled the objection of the judgment-debtor on three grounds, namely, first, that the alleged agreement was inoperative, inasmuch as it had not been notified to and sanctioned by the Court : secondly, that oral evidence was not admissible in proof of the alleged parole agreement : and thirdly, that the agreement was void as made without consideration.

(2.) As regards the first ground assigned by the Subordinate Judge in support of his order, it is plain that he has taken an erroneous view of the law. Section 257A of the Code of Civil Procedure, 1882, provided that " Every agreement to give time for the satisfaction of a judgment-debt shall be void unless it is made for consideration and with the sanction of the Court which passed the decree, and such Court deems the consideration to be under the circumstances reasonable." This has not been reproduced in the Code of 1908 : yet the Subordinate Judge has held that Rule 11 of Order XX of the Code has substantially the same effect, although it is plain that the provision just mentioned has no application to mortgage- decrees. In our opinion the effect of the repeal of Section 257A of the Code of Civil Procedure of 1882 is to make an agreement to give time to the judgment-debtor an agreement the legality of which must be tested like that of any other agreement, in other words, an agreement to give time to the judgment-debtor may now be entered into between the decree- holder and the judgment-debtor without the sanction of the Court, and effect may be given to such an agreement, as to any other agreement, if valid in law. In fact, it has not been seriously contested on behalf of the respondents-decree-holders that the Subordinate Judge has erroneously held that the alleged agreement : was invalid because it had not been sanctioned by the Court. The first reason on which the order of the Subordinate Judge is based consequently fails.

(3.) As regards the second ground assigned by the Subordinate Judge in support of his order, it has been argued that Section 92 of the Indian Evidence Act excludes evidence of the alleged oral agreement. It has been contended that the effect of the agreement is to vary the terms of the decree made by this Court, and in support of this contention reliance has been placed upon the observations of Sir Barnes Peacock, C.J., in the case of Kristo Komul Singh v. Huree Sirdar 13 W.R. 44 : 4 B.L.R. (F.B.) 101. We shall assume, for the purposes of this argument, that the effect of the oral agreement is to vary the terms of the decree. The question, on this assumption, arises, whether Section 92 excludes evidence of the alleged oral agreement. Section 92 refers to contracts, grants or other dispositions of property mentioned in Section 91, and consequently, the terms of Section 91 must be first examined. This section provides that "When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained." With reference to Section 91, it has been argued on behalf of the respondents that a decree falls within the scope of the expression any matter required by law to be reduced to the form of a document," and that no evidence is admissible in proof of the terms of the decree other than the original document itself or secondary evidence of its contents where such secondary evidence is admissible. In support of this view reliance has been placed upon the cases of Dews v. Riley (1851.) 11 Com. Bench 434 : 2 L.M. & P. 544 : 20 L.J.C.P. 264 : 15 Jur. 1159 : 138 E.R. 542 : 18 L.T. 155 : 87 R.R. 718. Stonor v. Foule (1888) 13 13 App. Cas. 20 : 57 L.J. Q.B. 387 : 58 L.T. 1 : 36 W.R. 742 : 52 J.P. 228. Let us assume for the purposes of argument that the expression any matter required by law to be reduced to the form of a document" is comprehensive enough to include the case of a decree. We must next examine the terms of Section 92 which provides as follows : When the terms of any such contract, grant or other disposition of property (i.e., such contract, grant or disposition of property as is mentioned in Section 91) or-any matter required by law to be reduced to the form of a document, have been proved according to the last Section (91), no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives-in-interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms." It is plain that the scope of this section must be determined upon an examination of all its terms and that full effect must be given to the expression as between the parties to any such instrument or their representatives in interest." If this expression, which is applicable only in the case of documents of a dispositive character, is read along with, not only the words" contract, grant or other disposition of property" but also the words or any matter required by law to be reduced to the form of a document," it becomes plain that the object of the Legislature was to deal only with two classes of cases, namely, first, contracts, grants or other dispositions of property which have been reduced to the form of a document, by the act of parties, as mentioned in Section 91, and, secondly, contracts, grants or other dispositions of property which are required by law to be reduced to the form of a document : in Other words, the expression, any matter required by law to be reduced to the form of a document," controlled as it is by the expression as between the parties to any such instrument or their representatives in interest", has, in Section 92, a much narrower scope than in Section 91. It seems to us to be reasonably clear, that the expression, any matter required by law to be reduced to the form of a document," in Section 92, if read, as it must be read, along with the expression, as between the parties to any such instrument or their representatives in interest," cannot cover the case of a decree and that the Legislature did not intend that Section 92 should be applied to a case of the description now before us. This explains.