Present : Shaw A.C.J. and De Sampayo J.
. KUPPE KANNY v. CALIAPPA PILLAI.
295—D. C., Colombo, 44,377
Agreement before judgment as to amount due and . execution—Decreeentered without embodying the agreement—May agreement be proved■after decree—Adjustment of decree—Civil Procedure Code, ss.344, 349.
The Court when asked to execute a * decree may properly haveTegard to any agreement between the parties touching the-satisfaction ofadecree tobe subsequentlyentered, and if the
iterms of the agreement so required, refuse execution.
Plaintiff instituted this action againstdefendantfor therecovery
•of Rs. 2,463. Before judgment the parties came to an amicable-agreement, whereby they settled theamount payablebythe
•defendant to the plaintiff to be Rs. 550,of which asum ofRs.220
was then paid, and the balance Rs. 330 was agreed to be paid onApril 15, subject to the condition that if the balance was not dulypaid, the whole amount that might be decreed should be paid to theplaintiff. The terms of this agreement were not embodied in the•decree. Before April 15 a third party seized the debt due by the–•defendantto the plaintiff' bya prohibitory notice. The defendant
on April 14 tendered the Rs. 330 into Court, though in consequenceof the routine of business in the Courtit was notdeposited inthe
– Kacheheri tillafew dayslater. Defendantapplied thata com-
plete adjustment and satisfaction of the decree might 6c entered
( 254 )
on the record. Plaintiff 1 applied for execution of decree (for th#full amount decreed less Bs. 220). The District Judge certifiedpayment of Bs. 550, and allowed execution to issue for the balance.
Held, thatinthe circumstances of tbiB case plaintiff was not
entitled to furtherexecution of the decree.In view ofthe seizure
of money . inthehands of the defendant,the paymentinto Court
for the benefit of the plaintiff amounted to payment t.o plaintiff.
Section 349, Civil Procedure Code, contemplates cases of payment-or adjustmentofdecree after it has beenpassed. Butsection 344:
empowers theCourt to take into consideration theagreement
between the parties and refuse execution. '
FJlHE facts are fully set out in the judgment.
A. St, V. Jayewardene, for defendant, appellant.
Arulanandan, for plaintiff, respondent.
Cur. adv. wit.
September 20, 1916. De Sampayo J.—
In this case a point of civil procedure has arisen out of the-following state of fagfcs. The plaintiff on February 12,1916,.
instituted this action against the defendant for the recovery ofBs. 2,463 as principal and interest due on three promissory notes,and judgment as prayed was entered in favour of the plaintiff onApril 7. It appears, however, that between the date of institutionof action and the date of decree, that is to say, on March 11, theparties came to an amicable agreement, whereby they settled theamount payable by the defendant to the plaintiff to be Bs. 550, ofwhich Bs.' 220 was then paid, and the balance Bs. 330 was agreedto be paid on April 15, subject to the condition that if that balancewas not duly paid, the whole amount that might be decreed and thecosts in the case should be paid to the plaintiff by the defendant.The terms of this agreement were not put forward or embodied inthe decree when decree came to be entered, nor was any credit givenfor the sum of Bs. 220 already paid under the agreement. BeforeApril 15, when the balance Bs. 330 was to-be paid, a third partyseized the debt due by the defendant to plaintiff by a prohibitorynotice, under section 229 of the Civil Procedure Code, in execution,of a judgment obtained by him against the plaintiff. Thereuponthe defendant on April 14 tendered the Bs. 330 into Court (thoughin consequence of the routine of business in the Court it was notdeposited in the Kachcheri till a few days later), and applied that acomplete adjustment’ and satisfaction of the decree might be enteredon the record. Notice of this application was issued to the plaintifffor May 16. In the meantime, on April 19 the plaintiff applied forexecution of the decree, the form of application stating, under thehead “ Adjustment made, if any,” that Bs. 220 had been paid, andthat “ it was settled that Bs. ,330 was to be paid on April 15, and if
( 255 )
not, the whole amount should be recovered.” Prom this it is 1918.Apparent that the plaintiff recognized the existence of an agreement j)E sAK1»vnfor adjusting the decree on the above terms, but that his standpointwas that the condition of payment of Bs. 830 on April 15 had not Kwppe
been fulfilled, and he was, therefore, entitled to execute the whole Kannyv.
decree, save the Bs. 220 already paid. In. vi,ew of the seizure of the PiUaimoney in the hands of the defendant, I am not inclined to regardthe payment into Court for the benefit of the plaintiff as not amount-ing to payment to plaintiff, and as not satisfying the condition ofthe agreement. Counsel for the plaintiff informed us that thejudgment under which that seizure took place was. obtained by fraud,to which the defendant was a party, . and had subsequently been*et aside, and he desired us to give the plaintiff an opportunity ofshowing these facts in order to avoid the effect of the payment intoCourt. But it appears that the judgment had been set aside at thetime when the present matter came for consideration, but thosefacts were not put before the District Court, nor has any affidavitbeen submitted to us in support of them. I do not think, therefore,that we can accede to the request of counsel. Moreover, theobjection based on the alleged non-payment before April 15 wasnot persisted in, and was practically abandoned on June 6, when botfithe defendant’s application for entering satisfaction and the plaintiff'sApplication for writ of execution were taken up, and an entirelynew objection was raised and was upheld by the District Judge.
For it was then contended that the adjustment could not be certified,inasmuch as the agreement was entered into before the date of thedecree, and that the decree must be executed as it stood. I thinkthat, so far as section 849 is concerned, the order appealed from isright. For it is clear to my mind that the section contemplatescases of payment or adjustment of a decree after it has been passed.
In this connection it was argued by Mr. A. St. V. Jayewardene that,as the payment of the Bs. 330 was made after the decree, thoughin pursuance of the prior agreement, it was an adjustment of thedecree. The payment of the Bs. 330 itself may be certified undersection 349, and it has been so certified by the order appealed from.
What is sought to be done, however, is to have certified the rest oftiie compromise as a complete satisfaction of the decree, and I donot think the defendant is entitled to such an order under section 349.
But there is another matter which remains to be considered.
For, although section 349 may not be applicable to the circumstancesof the case, it does not follow that the plaintiff is entitled to thepart of the order which has allowed his application to execute thedecree by issue of writ for recovery of the balance amount of thedecree. Section 344 of the Civil Procedure Code empowers theCourt executing the decree to determine all questions relating to theexecution of the decree. That section corresponds to section 244of the Indian Procedure Code of 1882. In view of the decision in
( 256 )
' L. R. 19 1.4166.
* (1S96) 1. L. R. 22 Bom. 463.
1916. Pro8unno Coo-mar v. H arid as,' where the Privy Council observedDu Sahpayo that the provisions of the section should not receive a narrowj.construction, it has been held by the Courts in India, after an
Kvppeexamination of all the previous cases on the subject, that the Court
Kanny v. when asked to execute a decree would properly have regard to anyagreement between the parties touching the satisfaction of a decreeto be subsequently entered, and that, if the terms, of such agreementso required, the Court would refuse execution. See the Full Benchcase of Laldas Narandas v. Kishordas Devidas.a It is true that tothe words “ relating to the execution of the decree ” in the Indiansection the amending Act of 1888 added the words " or to the stayof execution.” But the amendment makes no material difference,as it was evidently intended to render the matter more clear, andthe reasoning in the decision above referred to is as much applicableto our section 344 as to the Indian section as amended. In thiscase I think the Court, in view of the facts and the equitable con-siderations arising therefrom, should have disallowed the plaintiff’sapplication for further execution of the,decree.
I would, therefore, set aside the order of the District Judge, so faras it allowed the plaintiff’s application for issue of writ of execution.As the defendant’s contention in the Court below was entirely basedon section 349, I think there should be no order for costs.
Shaw A.C.J.—I agree.
KUPPE KANNY v. CALIAPPA PILLAI