SATYABADI SAHU Vs. MANI SAHU

JUDGEMENT

(1.) This is an appeal from a decision of the Subordinate Judge in execution. The respondent had obtained a decree against the appellants on bahi khata account and subsequently there was a compromise by which it was arranged that the appellants should pay a sum of Rs. 11,500. The appellants later applied to the learned Judge to investigate their allegation on their petition that they had entered into an arrangement with the respondent by which the decree was adjusted, the allegation being that a new contract had been entered into between the appellants and the respondent by which it had been agreed that the appellants should for a certain sum of money assign a certain property to the respondent. The learned Judge however declined to call upon the respondent to show cause why the alleged adjustment should not be recorded holding that inasmuch as the contract alleged was to do something in the future that could not be considered an adjustment under Order 21, Rule 2. From time to time the Courts of India have given attention to the point noticed in the opinion of the learned Judge and for a time there was a current of decisions in some of the High Courts that a contract to perform something in the future could not be an adjustment within the meaning of Order 21, Rule 2. That view however may now be considered obsolete. Certainly I would be unwilling to follow the earlier arguments in some of the High Courts, notably that of Piggott and Walsh, JJ. in Lachhmin Das V/s. Baba Kali Kamali Wala 1922 All 13, where one of the learned Judges, but not the other, took the view that contracts to perform acts in the future were not within the meaning of Order 21, Rule 2. The same learned Judge expressed the opinion that inasmuch as the contract relied upon was an oral contract and inasmuch as the decree was in writing, the matter was governed by Section 92, Evidence Act, and the evidence of an oral contract to modify a written, contract was not admissible. That view was not followed except in one insignificant case and was not followed by the other High Courts in India. Indeed it has been many times expressly dissented from.

(2.) In my opinion the clearest and the correct pronouncement of the law is in the judgment of the Madras High Court delivered in 1932 by Reilly and Anantakrishna Ayyar, JJ. in Ramanarasu V/s. Venkata Reddi 1933 Mad 28, and after a careful review of the authorities the learned Judges point out that there is no reason why a decree should not be extinguished by a new contract in which the judgment- debtor agreed to do something in the future if the decree-holder chose to accept the contract in the place of his rights under the decree. The same view was taken by Broomfield, J. in Kalyanji Dhana V/s. Dharmsi Dhana and Co. 1935 Bom 303. In his decision the learned Judge carefully reviews the many earlier authorities on this point and agrees with the view expressed by the decision to which I have just referred. It would appear that the point of view that an agreement to do something in the future cannot be considered as an adjustment coming under Order 21, Rule 2 arose out of the earlier decision of Walsh, J. in which he had used the expression that an inchoate agreement could not be an adjustment. By the words inchoate agreement I understand an agreement which has not been completed as an agreement. It is hardly necessary perhaps to deal with the proposition that an incomplete agreement cannot be an adjustment for it is not an agreement at all. There is a very pronounced distinction between the completion of the agreement and the completion of the acts which are to be performed in fulfillment of the agreement as Reilly, J. pointed out in the Madras case to which I have referred, provided there be an agreement in fact. The point that the agreement has got to be carried out in the future is not a point against the agreement and is no point against its being considered as an adjustment of the decree. The point taken under Section 92, Evidence Act, is at the present day hardly worthy of serious consideration. By the fresh agreement we do not find a modification of an old agreement but merely that it is agreed that the decree- holder shall abandon his rights under the decree and there is nothing in Section 92, Evidence Act, and there is nothing in the Contract Act, to necessitate that such an agreement should be in writing.

(3.) The case therefore should go back to the learned Subordinate Judge in order that he may call upon the decree-holder to answer the allegation that the alleged agreement was come to. It may be that after investigation the learned Subordinate Judge may find that no such contract was in fact effected, in which case of course he will maintain his original decision. If, on the other hand, he should find that there has been in fact such a contract, then the contract whatever it is, if it is proved, should be recorded as the adjustment of the decree. The case should be disposed of by the learned Subordinate Judge as soon as he can possibly do so. I would allow the appeal with costs. Saunders, J.