SAMBASIVA AIYAR Vs. THIRUMALAIRAMANUJATHATHACHARIAR

JUDGEMENT

(1.) This appeal arises in execution of a mortgage decree for sale for Rs. 1,800 and odd obtained by the plaintiff-appellant against the defendants-respondents. The 3rd defendant one of the respondents pleaded that the decree had ceased to be executable by reason of an oral agreement between him and the plaintiff, the conditions . of which on his part he had performed. The District Munsif disallowed his plea as not properly pleadable in execution and took no evidence as to the existence of the agreement which was denied by the other side or of its terms or of its alleged performance by him. The District Judge reserved that decision and remanded the case for disposal on the merits. The Appeal to us is against his decision.

(2.) The question to be considered is whether the defendant is barred from setting up his plea in execution; and it has to be decided on the allegations made by him as no evidence has yet been taken, He alleges in his counter-petition that at the request of the plaintiff he agreed to settle the family disputes of one Murugathammal, a friend of the plaintiffs, and to induce her creditors, as she was in financial difficulties, to forego portions of their claims, that in consideration of his trouble he was to be allowed to treat the suit claim as fully satisfied on payment of Rs.. 550 to her creditors and that in the meanwhile plaintiff was to get a decree as sued for as a guarantee for defendant s due performance of his part of the contract but the decree was not to be executed if defendant did perform his part. He states that he did all that was necessary and paid Rs. 550 to 4 creditors of Murugathammal.

(3.) The agreement is said to have been entered into just before the preliminary decree was passed. The 3rd defendant tried to plead it in answer when the application for the final decree was made but his objection was overruled on the ground that under Order 34 Rule 5 of the Code of Civil Procedure only payments made directly into Court could be considered. The High Court however then observed that his right if any would only be to plead the agreement in execution. That, of course, was not a decision that he could do so; that question we have now to decide.