Hunter Et Al. V. De Silva

1939     Present: Soertsz A.C.J. and de Kretser J.

HUNTER et al. v. DE SILVA.

132-D. C. Colombo, 45,279. 

Decree-Subsequent agreement to pay higher rate of interest-Application to alter decree and certify adjustment-Civil Procedure Code, s. 349.

Where after decree was entered in an action the defendants entered into an agreement with the plaintiffs to pay a rate of interest higher than that given by the decree and where the plaintiffs applied to have the decree altered and the adjustment certified under section 349 of the Civil Procedure Code,-

Held, that the decree could not be altered to give effect to the agreement.

The agreement may go beyond the terms of the decree but the Court will recognize and certify only so much of the agreement as adjusts the decree in whole or in part.

APPEAL from an order of the District Judge of Colombo.

H. V. Perera, K.C. (with him E. B. Wikremanayake), for defendants, appellants.

N. Nadarajah (with him Nadesan and Manikavasagar), for plaintiffs, respondents. 

Cur adv vult. 

June 7, 1939. DE KRETSER J.-

On September 16, 1931, decree was entered in favour of the plaintiffs for the payment of Rs. 10,800 with interest at 18 per cent, per annum on Rs. 10,000 from date of action to date of decree, with further interest on the aggregate amount at 9 per cent, till payment in full.

In October, 1931, the plaintiffs applied for execution; but on November 20, plaintiff's Proctor filed a paper signed by the defendants, and moved that the same be embodied in the decree.

The Court minuted " Note and File ". The paper is signed by all three defendants, and is to this effect: -" We consent to pay interest at the rate referred to in the mortgage bond No. 197 filed of record, from the date of decree till payment in full, in lieu of the rate of 9 per cent, provided for in the decree ".

On September 20, 1937, the plaintiffs moved that the rate of interest specified in the decree be altered to 12 per cent. The Court refused the application. The plaintiffs then moved to certify of record the adjust­ment of the decree in accordance with the motion referred to, and moved that the commission be reissued.

The defendants objected to this application and moved that the matter be fixed for inquiry. The District Judge, after inquiry, made order allowing the application and, certifying of record the adjustment of the decree, ordered that commission be reissued for the recovery of the balance due in accordance with the adjustment and in terms of the plaintiffs' application.

The defendants thereupon deposited a sum of Rs. 5,000 which is admitted to be due on account oi principal, and appealed againsl the order certifying the adjustment in the way in which it has been certified.

The main contention for the appellants was that any agreement which added to the decree and increased the liability of the defendants was not an adjustment within the terms of section 349 of the Civil Procedure Code.

It became apparent during the argument that the plaintiffs were really see

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