KEUNEMaim J.—Meenatchy Atchy v. Palaniappa Chettiar.
1941Present: Moseley S.P J. and Keuneman J.
MEENATCHY ATCHY v. PALANIAPPA CHETTIAR.
17—D. C. Colombo, 17,348.
Decree—Agreement substituting new decree for original decree—Date of newdecree—Prescription—Civil Procedure Code, s. 337 (1) (a) and (b).Where a decree which was entered in January, 1926, was adjusted bymeans of a consent motion filed to the effect that “ the date of the decreein this case should be reckoned as from this date” (October, 1933).
Held, that the agreement incorporated in the order substituted a newdecree for the original decree and that the date given in the agreementmust be regarded as the date of the decree for the purposes of section337 (1) (a) of the Civil Procedure Code.
Held, further, that the agreement may be regarded ~s “ a subsequentorder directing the payment of money to be made at a specified date ",within the meaning of section 337 (1) (bTof the Civil Procedure Code.
^^PPEAL from an order of the District Judge of Colombo.
N.E. Weerasooria, K.C. (with him E. B. Wikremanayake), for first andthird defendants, appellants,
C. Thiagalingam (with him N. Kumarasingham), for plaintiff,respondent.
Cur. adv. vult.
May 29, 1941. Keuneman J.—
In this case in default of appearance of the defendants decree nisi wasentered on October 30, 1925, in favour of plaintiff in the sum of Rs. 12,500with interest at 9 per cent, from September 3, 1925, till payment in full.This decree was made absolute on January 18, 1926.. There were appli-cations for writ made on more than one occasion. Eventually onOctober 17, 1933, a consent motion was filed to the effect that “ thefollowing adjustment of the decree in this case be entered and certifiedof record
Inter alia this “ adjustment ” provided—
that the date of the decree in this case be reckoned as from this
date (October 17, 1933) ;
that the sale already fixed be stayed and stand adjourned for, November 17, 1933;
that the defendants do pay to the plaintiff the balance amount of
the decree, viz.:—a sum of Rs. 10,450 and costs (Rs. 300) withinterest on Rs. 10,450 at the rate of 9 per cent, by quarterlyinstalments of Rs. 250 on January 24, April 24, July 24, andOctober 24, each and every succeeding year for a period of threeyears, the first payment to be on January 24, 1934, and allbalances after payment of the above instalments on January24, 1936. On October 17, 1933, the motion was allowed and ordermade accordingly.
After certain other proceedings which need riot be mentioned, onJanuary 24,1940, the plaintiff applied to re-issue writ. This application wasallowed. Thereafter on February 22, 1940, the first and third defendants42/26
334KEUNEMAN J.—Meenatchy Atchy v. Palaniappa Chettiar.
filed the application now in question, requesting the Court to order thewithdrawal of the writ issued, as the decree was no longer executable asprovided by section 337 of the Civil Procedure Code.
The learned District Judge dismissed the objections of the first and thirddefendants, who appeal from that order.
The argument of the appellants, in short, is that as more than 10 yearshave elapsed since the date of the decree entered on January 18, 1926, noapplication for execution can now be allowed.
The District Judge held that in the view of the consent order of October17, 1933, whereby the date of the decree was to be reckoned as fromOctober 17, 1933, it was not open to the defendants to say that theapplication for execution is barred.
The appellants contend that the District Judge based his judgment onestoppel and that estoppel cannot prevail against the clear words of theStatute (of re The Stapleford Colliery Co. Ltd., Barrow’s case 1880, 14 Ch.Div. 432, 41 L.T. 755). I do not think however it is necessary to discussthe point regarding estoppel, if in fact the District Judge based his judg-ment on estoppel. For I think the case can be decided on other grounds.
Counsel for the respondent argued that on October 17, 1933, a newdecree had been substituted for the decree dated January 18, 1926. Heemphasized the agreement that the date of the decree should be reckonedas from that date, the entering of a new and smaller sum as the amountpayable, and the order for the payment of this sum by instalments. Herelied on the case of H. Sanyal v. K. N. Sanyal and others1 in whichunder circumstances not dissimilar to the present, the application forwrit was held to be an application to execute the substituted decree,and the provisions of section 48 of the Indian Civil Procedure Code didnot operate as a bar. In the present case I think there is good groundfor holding that the agreement of October 17, 1933, which Was incor-porated in the order of that date, in effect substituted a new decree for theoriginal decree. No doubt, to establish his point, the respondent mustshow that the original decree was actually superseded by the new arrange-ment, and that it was not merely an intermediate arrangement for thepayment of the original decree. But I think the terms of the compromiseof October 17, 1933, show that a new decree was in fact brought into being.
Counsel for the appellant argued that this procedure was unknown toour law, and was bad. He further argued that at best, the compromiseof October 17, 1933, was an agreement which could be enforced byseparate action, and could not be executed as a substantial decree. Thesepoints were dealt with in the Indian case referred to above, which followedearlier decisions in India and England to the effect that, provided thereis no inherent want of jurisdiction in the Court with regard to the subject-matter before it or with regard to the person, parties by agreement mayarrange their own procedure and give jurisdiction to the Court to adoptthat procedure, and that the parties should be held to the agreement thatquestions between them should be heard and determined by proceeding,quite contrary to the cursus curiae, even to the extent that money dueunder the agreement be realized as in execution of a decree rather thanby recourse to a separate suit. 1
1 A. I. S. (1929) Col. 687.
KEUNEMAN J.—Jayasekere v. Betohamy.
I think the argument advanced in the Indian case apply with equalforce in Ceylon. In Chettinad Corporation v. Raman Chettiar Fernando A.J. regarded as possible “ an agreement which satisfies thedecree and which attempts to substitute another in its place ”, althoughhe held that the agreement he was dealing with did not have that effect.
If we accept the arrangement of October 17, 1933, as a substitution ofa new decree, then the application for execution is not barred- undersection 337 (1) (a) of the Civil Procedure Code.
It has also been argued for the respondent that the present case shouldbe decided under section 337 (1) (b), as the agreement of October 17, 1933,can at least be regarded as “ a subsequent order ” directing the paymentof money to be made at a specified date, in which case the ten-year periodwill run only from the date of the default. I think there is force in thisargument. Counsel for appellant tried to restrict the words “^bsequentorder” to such order as is separate from the decree, e.g., a subsequentorder for costs. I do not think such a restricted interpretation can bejustified, and in fact in my opinion it does violence to the language of thesection.
I have accordingly come to the conclusion that the judgment of theDistrict Judge is correct. I dismiss the appeal with costs.
Moseley SJP.J.—I agree.Appeal dismissed.
MEENATCHY ATCHY v. PALANIAPPA CHETTIAR