038-SLLR-SLLR-1983-2-GREGO-v.-RATNAYAKE.pdf
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[1983] 2 Sri L. R.
GRERO
v.
RATNAYAKE
COURT OF APPEALTAMBIAH. J. AND H. A. G. DE SILVA. J.C.A. 187/77 (M.C. CIVIL) WITHC.A. 188/77 (M.C. CIVIL)
MC COLOMBO 479/ED AND 480/EDMARCH 9. 1983.
Landlord and tenant—Arrears of rent—Compromise—Do rules of appropriationapply to a consent decree ?
Held —
The rules of appropriation under the Roman Dutch Law do not apply tojudgment debts. A court cannot apportion payments in a way it thinks just.
Although the force of a consent decree is derived from the consensus ad idemof the parties (it having received the additional validity of being accepted by theCourt) it cannot be set aside by the consent of the parties as any other contractcould have been, but can only be vacated by the Court by a proper proceedingjn that behalf.
Cases referred to
Silva v. Leiris Appu 1 C.L.J. 31,32, 33
Thiruvambala v. Chinna Pandaram AIR 1917 Madras 578. 588
The Bellcairn (1885) 10 P.D. 161.55 L.J.P. 3
APPEAL from orders of Magistrate disallowing applications for writP. A. D. Samarasekera for plaintiff-appellant
M. P. Herath for defendant-respondent
Cur. adv. vult
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Grero v. Ratnayake (Tambiah. J.)
453
May 16, 1983TAMBIAH, J.
The plaintiff-appellant filed three actions — Cases Nos.478/ED, 479/ED and 480/ED — against the defendant-respondent to eject him from premises Nos. 75/1. 71 and 72,Church Road, Mattakkuliya, on the ground of arrears of rent.Case No. 478 was in respect of premises No. 75/1. Case No.479 in respect of premises No. 71, and Case No. 480 in respectof premises No. 72.
On the trial date, on 11.11.76. the three cases were settled onthe following terms:— Commencing December 1976, on orbefore the last day of every month, the respondent to pay.inclusive of arrears, current monthly charges and costs.Rs. 154/48 in respect of premises No. 75/1 ; Rs. 154/14 inrespect of premises No. 71. and Rs. 99/72 in respect ofpremises No. 72. totalling Rs. 408/34. If the said payments aremade on the due dates without a single default, the respondentto be accepted as new tenant and to continue in occupation. Ifthe respondent makes a single default, writ of ejectment toissue, without notice.
The respondent on 11.12.76 paid the appellant Rs. 408/-,instead of Rs. 408/34. and continued to pay Rs. 408/- up toJune 1 977. The appellant accepted the same and issued receiptsto the following effect:—
" Received as part payment of arrears, damages and costs.Rs. 154.37. in respect of Case No. 478; Rs. 154/03 inrespect of Case No. 479, and Rs. 99/60 in respect of CaseNo. 480. without prejudice to issue writ of possession andwrit for recovery of balance arrears and damages and costsdue in the above cases. "
In July 1977, the appellant applied for writ in all three cases.
In the course of his Order, the learned Magistrate stated thatthe respondent was under a duty and was bound to pay the
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decreed amount and that there was no excuse for his default. He,however, took the view that the landlord had acted unfairly andthat in the interests of justice he ought to have appropriated thesum of Rs. 408/- to the amounts due under the decrees enteredin two of the cases and the balance as part-payment of thedecreed amount in the third case. The learned Magistrate,accordingly, allocated the sum of Rs. 408/- as follows
Rs. 1 54.14 being monthly rent in respect of premises No.75/1, subject matter of case No. 478/ED.
Rs. 154.14 being monthly rent in respect of premisesNo. 71, subject matter of case No. 479/ED.
Rs. 99.72 being monthly rent in respect of premisesNo. 72, subject matter of case No. 480/ED.
The learned Magistrate, in the result, allowed the issue of writin case No. 478/ED, and disallowed the issue of writs in casesNos. 479/ED and 480/ED. An appeal was preferred from theorder in case No. 478/ED and learned attorneys informed usthat the matter has been concluded in appeal.
The question that arises in appeal is whether the learnedMagistrate was right in apportioning the sum of Rs. 408/- in theway he did and in disallowing the issue of writs in casesNos. 479/ED and 480/ED.
Learned attorney for the appellant submitted that the learnedMagistrate has erred in applying the rules relating toappropriation as the rules do not apply to judgment debts.
In Silva v. Leiris Appu (1) it was held that the rules ofappropriation under the Roman Dutch Law do not apply to thecase of a judgment debt. Koch,- J. said (pgs. 32, 33)—
" Now it is clear that our common law in regulatingappropriation of payments stresses consideration of
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advantage to the debtor and in doing so appropriates apayment to the most onerous debt… but can it be said thatthe rules of appropriation apply even after a decree hasbeen entered ? I think not, for I feel that these rules wereintended to govern the contracting parties so long only asactual contractual relations exist. Once the intervention of aCourt has been sought and once a decree has beenentered, the contractual relations are determined and theliability of one to the other is no longer under the contractbut under the decree which takes its place and which is theformal expression of the results arrived at by the judgment.The parties thereupon pass out of the domain of contractand enter that of a decree … The common law relations ofthe parties appear to be at an end at the moment a decree isentered and fresh rights and obligations emerge from underthe decree which can be enforced procedurally in terms ofthe Civil Procedure Code. "
This case supports the contention of learned attorney for theappellant.
Does the contractual relation cease to exist where a decree isentered of consent ? Learned attorney for the respondent reliedon a passage in Chitaley's Code of Civil Procedure (Vol. 3. 3rdEd., at p. 2500} which states—
" A compromise decree is a creature of the agreement inwhich it is based and is subject to all the incidents of suchagreement. A compromise decree is but a contract with thecommand of a Judge super-added to it. Hence such adecree is of no greater validity than the contract on which itis based. It can. therefore, be set aside on any of thegrounds, such as fraud, mistake, misrepresentation, etc. onwhich a contract may be set aside. "
It was his submission that in a compromise decree, thecontractual relation still subsists and therefore the rules ofappropriation will apply.
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I am unable to agree. Under s. 408 of the Civil ProcedureCode, it is the duty of the trial Judge to enter a decree inaccordance with the terms of settlement. The passage just citedonly lays down that greater validity cannot be given to theconsent decree than to the agreement on which it is basedmerely because in the decree the agreement has received judicialsanction, and that a consent order could be impeached upon anygrounds which would invalidate an agreement between theparties. If learned attorney for the respondent is correct in statingthat the contractual relation remains despite the entering of aconsent decree, then the parties ought to be able to set aside theconsent decree by mutual consent as in the case of any othercontract. But can they do that ? In Thiruvambala v. ChinnaPandaram (2) Wallis, C.J. said—
" At the same time it is well settled that until the decreebased on the compromise is recalled it is binding on theparties to the suit. Lord Esher in The Bellcairn (3) says :
" I agree with Butt, J.. that when at a trial the Courtgives judgment by the consent of the parties it is a' binding judgment of the Court and cannot be set asideby a subsequent agreement between the solicitors. "
I take the reason of the rule to be that although the forceof a consent decree is derived from the consensus ad idemof the parties (it having received additional validity by beingaccepted by the Court) it cannot be set aside by the consentof the parties as any other contract could have been but canonly be vacated by the Court by a proper proceeding in thatbehalf."
It seems to me. therefore, that rules of appropriation do not applywhether it be a case of a consent decree giving effect to a
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compromise agreement or a decree entered upon a contestbetween the parties.
The appeals in cases Nos. 479/ED and 480/ED are allowedand the order of the learned Magistrate dated 31.10.77 is setaside. The appellant will be entitled to the issue of writs in boththese cases. There will be no costs.
H. A, G. DE SILVA. J. – I agree.
Appeals allowed.