DELLI VENKATARAMA DASS PANTULU Vs. NIPPANI VENKATARAMANAYYA PANTULU

JUDGEMENT

(1.) In our opinion the decision of the learned District Judge is correct. We cannot agree with Mr. B.V. Ramanarasu that the question in dispute was res judicata. The learned Advocate admits that there was no express adjudication, and in the face of the learned District Judge's order dated 21 April, 1931, it is impossible to hold that the doctrine of constructive res judicata can be applied.

(2.) Mr. B.V. Ramanarasu's next contention is that the judgment-debtors are estopped by their own conduct in entering into an agreement with him for payment of interest, from denying their liability to interest. He relies on Subramania Pillai V/s. Corera (1924) 48 M.L.J. 121 and the Privy Council cases cited therein. But in all those cases there was a security bond in favour of the Court, an order of the Court accepting or sanctioning the arrangement made between parties out of Court, or at the least there was no denial, and no possibility of denial of the fact of the agreement. Here the agreement itself is denied by the judgment-debtors and nobody can suggest that they are estopped from denying it. Till the agreement is established, the question of estopping the judgment-debtors from denying the liability for interest and the decree-holder's right to recover interest in execution cannot arise.

(3.) The real point is whether an executing Court, on an application made for execution of a decree in which no interest is provided, can be compelled to hold an enquiry into an alleged agreement to pay interest in execution, when the judgment-debtors deny the agreement. There is no authority for such a proposition. This is in effect asking the Court in execution to modify the decree. In our opinion the Court executing the decree has no power to modify it in the manner suggested, and cannot be compelled to enter upon such an enquiry. It is expressly recognised in Sadasiva Pillai V/s. Ramalinga Pillai (1875) L.R. 2 I.A. 219 (P.C.) by their Lordships of the Privy Council that: All the High Courts of India have accepted as settled law1 these propositions first, that where the decree is silent as to interest or mesne profits the Court executing the decree cannot under the clause in question assess or give execution for such interest or mesne profits.