Ponnamperuma v. Wickremanayake.97
1942Present: Howard C.J. and Hearne J.
PONNAMPERUM v. WICKREMANAYAKE.
76—D. C. Galle, 37,956.
Adjustment of decree—Agreement by the decree-holder to accept asmaller sum—Application to certify adjustment—Civil Procedure Code, s. 349(1 and 2).
An agreement by the decree-holder to accept a smaller sum than theamount of the decree is an “ adjustment of the decree to the satisfaction ofthe decree-holder” within the meaning of section 349 (1) of the'CivilProcedure Code.
UDGMENT was entered in favour of the plaintiff against thedefendant for a sum of Rs. 1,000, costs and legal interest.
The defendant alleging that the plaintiff had agreed to accept Rs. 750in full settlement of the decree and bringing the money into Court prayedthat the adjustment be certified of record and that satisfaction of thedecree be entered.
The learned District Judge allowed the application.
H. V. Perera, K.C. (with him A. H. C. de Silva), for the plaintiff,appellant.—There was no adjustment within the meaning of section 349of the Civil Procedure Code (Cap. 86). An adjustment must be to thesatisfaction of the decree-holder. It means something done by thejudgment-debtor which is accepted by the judgment-creditor in satis-faction, in part or in whole, of the decree. A purely executoryagreement is not enough. A waiver of a part of the decree where noconsideration is given for the waiver is not an adjustment. The provisionin Indian Civil Procedure, corresponding to our section 349, is O. 2 R. 2.An agreement without consideration is not an adjustment.
[Hearne J.—Would not our doctrine of causa make any difference ?]No. The English notion of accord and satisfaction is contemplated insection 349. See Lachmin Das v. Baba Kali Kamliwala1 and Raja ofKalahasti v. Rao Varu Hunter et al. v. dc Silva3 has been referred to bythe District Judge. The judgment, in that case, of Soertsz J. supportsmy position.
M.T. de S. Amerasekere, K.C. (with him H. W. Jayewardene), for thedefendant, respondent.—The word “ otherwise ” in section 349 contem-plates an adjustment otherwise than by payment. An agreement by thedecree-holder to waive a portion- of"the decree is a mode of adjustment.It is not necessary that something should be done by the judgment-debtor. A waiver is good without consideration—Ramalingam v. James In Ceylon no consideration in the English sense is necessary for a waiver,and in this respect our Jaw is different from the law in India.. We broughtthe Rs. 750 to Court. The order of the District Judge is right.
The two Indian cases cited on behalf of appellant are in conflict withHotchand Tolaram v. Premchand et al.* and Abdul Karim et al. v. HakamMal-Tani Mal‘.
' .4. /. R. Via All. 13.4 (1039) 40 X. L. R. 436.
* A. I. R. 1027 Mail. Oil.5 A. I. R- 1931 Sind. 42.
4 (1939) 41 X. L. R. 110.• A. I. R. 1933 Lahore 306.
HEARNE J.—Ponnamperuma v. Wickremanayake.
H. V. Perera, K.C., in, reply.—The conflict in the Indian cases is only inrespect of the effect of section 92 of the Evidence Act.
Ramalingam v. James (supra) is the decision of a single Judge,and is not consistent with the later view taken in Hunter et al. v. de Silva(supra).
Cur. adv. vult.
January 30, 1942. Hearne J.—
This is an appeal from an order made by the District Judge ofGalle.
A decree was entered in favour of the plaintiff against the defendantfor a sum of Rs. 1,000, costs, and legal interest. The defendant, allegingthat the plaintiff had agreed to accept Rs. 750 in full settlement of thedecree and bringing this money into Court, prayed that the adjustmentbe certified of record and that satisfaction of decree be entered. TheJudge accepted the defendant’s allegation as true and allowed hisapplication. The plaintiff has appealed.
The Judge’s finding of fact has not been seriously canvassed and theappeal has proceeded mainly on a point of law. The relevant section issection 349 (2) of the Civil Procedure Code and it is argued that, unless thejudgment debtor has made a payment or done something which isequivalent to payment to the satisfaction of the decree holder, there hasbeen no adjustment of the decree.
The Indian cases that were cited are not helpful. Some of them decidethat oral agreements “ in modification of a decree ” offend against theterms of section 92 Indian Evidence Act : others, e.g., A. I. R. (1927)Madras 911, that a mere promise on the part of the judgment debtor topay without an actual payment cannot be regarded as an adjustmentunder the Civil Procedure Code in India.
In the present case we are not concerned with a promise by the judgmentdebtor to pay, but a promise by the decree holder to waive payment.Counsel for the plaintiff appellant stressed the words “to the satisfactionof the decree holder ”. But I think that we would be, following awill-o’-the-wisp in trying to ascertain what, psychologically speaking, issatisfaction. An attempt must be made to give a legal meaning to thewords “ adjustment to the satisfaction of the decree holder ”. I takethose words to mean a transaction to which the decree holder is a con-senting party the effect of which in law is to extinguish the decree in wholeor in part.
Whatever may be the position in India where the English conceptionof consideration prevails, in Ceylon under the Roman-Dutch .law, thedecree holder’s promise in this case has the effect when certified ofextinguishing the decree to the extent of that promise. This view of thelaw was apparently taken for granted in Ramalingam v. James '.
In my opinion the appeal should be dismissed wfith costs.
Howard C.J.—I agree.
1 40 N. L. S- 4SH.
PONNAMPERUM v. WICKREMANAYAKE