ADAPA PAPAMMA Vs. DARBHA VENKAYYA

JUDGEMENT

(1.) This is an appeal from the order of the Additional Subordinate Judge, Cocanada, dated 8th October, 1930, dismissing a petition for executing the decree in O. Section No. 61 of 1920 on the file of the Sub-Court, Cocanada, as against the first judgment-debtor. The petitioner is the son and legal representative of the deceased second decree-holder and he applied to execute the decree for the benefit of the first decree-holder who did not join in the application. The decree sought to be executed was dated 28 September, 1922, and the application was made on 12 October, 1928 for realising the mesne profits and costs awarded by the decree by arresting the first judgment-debtor and by attaching his properties as well as those of some other judgment-debtors. The application was resisted by the first judgment-debtor alone, and on two main grounds, namely, that there was an oral agreement between him and the petitioner in his capacity as agent of the two plaintiffs in the suit sometime after he had filed his written statement in the suit and before the passing of the decree to the effect the plaintiffs would not execute any decree that might be passed against him in the suit provided he did not contest the suit, and that the claim to execute the decree against him is barred by limitation. The additional Sub-Judge found that while the claim was not barred by limitation, the oral agreement relied upon by the first judgment-debtor was true and could be successfully pleaded in bar of execution. The appeal of the petitioner in execution is directed against the latter finding about the oral agreement.

(2.) Three contentions are raised by the appellant in this appeal, namely, (1) evidence of the oral agreement is excluded by Section 92 of the Indian Evidence Act, (2) the oral agreement cannot be pleaded in bar of execution in the Court executing the decree, and (3) the alleged oral agreement is not true.

(3.) In order to succeed in his first contention the appellant has to establish two propositions, namely, that decrees come within the purview of Section 92 of the Indian Evidence Act, and that evidence of the oral agreement pleaded in this case is tendered for the purpose of contradicting, varying, adding to, or subtracting from the terms of the decree sought to be executed. The first of these propositions raises a question of law regarding which there is a conflict of opinion which is well-nigh irreconcilable. According to one view a decree is a "matter required by law to be reduced to the form of a document", the parties shown in the cause title of the decree being parties to the instrument, and therefore comes within the purview of Section 92 of the Indian Evidence Act. This view was taken in Rajah of Kalahasti V/s. Venkatadri Rao (1927) I.L.R. 50 Mad. 897 : 53 M.L.J. 533 following an earlier unreported decision by Napier and Krishnan, JJ., in S.A. No. 62 of 1920, and dissenting from the contrary view taken by the Calcutta High Court in Debendra Narain Sinha V/s. Sourindra Mohan Sinha (1914) 24 I.C. 391 and in Ananda Priya V/s. Bijoy Krishna A.I.R. 1926 Cal. 643. The bench decision in Rajah of Kalahasti V/s. Venkatadri Rao (1927) I.L.R. 50 Mad. 897 : 53 M.L.J. 533 was followed by a single Judge in Gopala Krishna Aiyar V/s. Sankara Aiyar . The same view had been expressed obiter by one of the two Judges of the Allahabad High Court who decided Lachman Das v. Baba Ramnath Kalikamliwala (1921) I.L.R. 44 All. 258 but it was dissented from by the learned Chief Justice of the same Court in a subsequent case, Ganga Dihal Rai V/s. Ram Oudh and also by a single Judge of the Rangoon High Court in Ma Shwe Pee V/s. Maung San Myo (1928) I.L.R. 6 Rang. 573. The latest case is Abdul Karim V/s. Hakam Maltani Mal (1933) I.L.R. 14 Lah. 668 in which a single Judge agreed with the ruling in Hotchand Tolaram V/s. Premchand A.I.R. 1931 Sind. 42 to the effect that an oral agreement between parties to a decree varying the terms of the decree can be proved and that the proof thereof is not barred by Section 92 of the Evidence Act.