1943 Present: Hearne and Keuneman JJ.

SILVA, Appellant, and WICKREMESINGHE, Respondent.

100-D. C. Matara, 6,787.

Decree-Agreement between judgment-creditor and debtor-Application to have adjustment of decree recorded-Application for writ-Civil Procedure Code, s.s. 344 and 349.

Where an agreement is entered into between the judgment-creditor and the judgment-debtor, which is intended to govern the liability of the latter under the decree and to have effect on the time and manner of its enforcement,-

Held (on an application for writ by the judgment-creditor), that the terms of the agreement should be considered by the executing Court under section 344 of the Civil Procedure Code, apart from the question whether it amounts to an adjustment of the decree within the meaning of section 349 or not.

THIS was an action on a mortgage bond which was signed by the 1st and 5th defendants as principals and the 6th defendant as surety. Decree was entered and at the sale plaintiff's son-in-law became the purchaser. A balance was outstanding and the plaintiff and the 6th defendant reached an agreement, the terms of which were recorded in Court and which are fully set out in the judgment. Subsequently, a memorandum of agreement was signed outside Court by the plaintiff and the 6th defendant. Thereafter two applications were made to Court (1) by plaintiff for writ and (2) by the 6th defendant to have adjustment of decree recorded as certified. The former was allowed and the latter dismissed. 6th defendant appealed.

H. V. Perera, K.C. (with him S. J. V. Chelvanayagam and S. W. Jayasuriya), for 6th defendant, appellant.-The question here is whether a party who had made an agreement regarding a mortgage decree may recede from that agreement. An agreement relating to a decree is valid unless it extinguishes the decree. The right to contract is not taken away by a rule in the Civil Procedure Code. There may be a contract, not amounting to an " adjustment", which must be given effect to in execution proceedings under section 344 of the Civil Procedure Code. The corresponding section in the Indian Code is section 47. The Privy Council, in the Indian case reported in (1939) A .I .R. at p. 80, held that the terms of an agreement between a judgment-creditor and a judgment-debtor must be considered by the execution Court under

section 47 of the Indian Code. The local decision (Hunter v. Silva[(1939) 41 N. L. R. 110.]) was given before the Privy Council judgment in the Indian case became available. Even if the Judge was right in holding that there had been no "adjustment" which could be recorded under section 349, he should have considered, under section 344, whether the plaintiff's right to execution was affected by the agreement.

N. Nadarajah, K.C. (with him G. P. J. Kurukulasuriya and G. P. A. Silva), for plaintiff, respondent.-If the agreement when recorded is still executory, there being no adequate provision for default, then it is not effective. In the Privy Council decision only a specific instance-viz., the granting of further time for payment in consideration of a higher rate of interest-was considered. It is not every decree which could be superseded-Ponnamperuma v. Wickremanayake[(1942) 43 N. L. R. 97]; (1930) A. I. R. (Madras) 410; (1925) A. I. R. (Madras) 206; varying the mode of enforcement or the time of enforcement is not an " adjustment of the decree"-Chettinad Corporation v. Raman Chettiar[(1937) 10 C. L. W. 58.]; Caruppen Chetty v. Abeyratne[ (1929) 30 N. L. R. 444.]. A promise to pay alone without proof of satisfaction is also not sufficient-Muttiah Chetty v. Ibrahim Saibo[(1904) 3 Bal. Rep. 142.]

H. V. Perera, K.C., replied.

Cur. adv. vult.

February 12, 1943. HEARNE J.-

The plaintiff filed an action on a bond " which was signed by 1st to 5th defendants as principals and the 6th defendant as surety". Decree was entered and at the mortgage s