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2006 Supreme(Bom) 1693
IN THE HIGH COURT OF BOMBAY
(B. P. Dharmadhikari, J.)
JAMOTIBAI SATY ANARA Y AN BAJAJ and others - Petitioners.
vs.
ABDUL RAZZAK s/o US MAN and others- Respondents.
W. P. Nos. 485 and 486 of 2006
Decided on 13-10-2006. (Nagpur)
For petitioners: J. T. Gilda
For respondents: S. U. Nemade
Headnote:Civil Procedure Code, 1908 - Section 47, Order XXIII, Rule 3 - Execution of decree - Money decrees - Both suits ended in compromise - By accepting lesser amount - Interpretation of default clause contained in compromise - On default of judgment-debtor in payment within time, decree holder entitled to recover entire decretal amount - Liability to pay suit amounts never accepted by judgment-debtor in compromise - Suit amount not amount due on date of compromise - Amount became due only on account of default of judgment-debtor - Condition incorporated by default clause, penal condition - Not enforceable - Decree holder entitled to recover only compromise amount. - Default clause provided that if defendants committed default in paying within time and three instalments, the plaintiffs would be entitled to recover entire suit amount.
The defendants (present respondents) nowhere accepted their liability to pay the suit amounts. Therefore, suit amount was not the amount due on the date of compromise. The amount is becoming due to present petitioners only on account of default committed by present respondents. Thus, the compromise was not a concession given to the respondents but it was a threat given to them.
2. The petitions are filed by the decree holders challenging the common order dated 28-4-2005 passed below Exh. 23 in Special Execution Case No. 175 of 2004 and Exh. 16 in Special Execution Case No. 176 of 2004. The Executing Court has by said order accepted the contention of respondents/judgment debtors that after effecting balance payment of Rs. 1,800/- each towards above mentioned execution cases, the decrees obtained against them would be satisfied if balance amount of Rs. 900/- and Rs. 1,800/- were paid to decree holders.
3. It appears that the respondents moved these applications at Exh. 23 and 16 before the lower Court for recording satisfaction of decrees passed against them in Special Civil Suit Nos. 125 of 1995 and 124 of 1995. The Suits were amicably settled before Lok Adalat. In one suit giving rise to Special Execution No. 175 of 2004, claim of present petitioners was Rs. 1,17,398.95 ps. and it has been settled by accepting amount of Rs. 37,800/-. In other suit which forms subject matter of Special Execution Case No. 174 of 2004, total claim of petitioners was Rs. 1,30,692.76 ps. and it was compromised by accepting amount of Rs. 37,800/-. The respondents accordingly wanted to complete payment of Rs. 37,800/- only in both the matters. They paid substantial amount and wanted balance amount to be certified. The payment made has been acknowledged and accepted by the petitioners. However, there was one default clause in Compromise Decree which envisaged that if judgment debtor made default in payment of any three instalments within time, decree holder would be entitled to recover entire amount of Rs. 1,17,398.95 ps. or Rs. 1,30,692.76 ps. The judgment debtors contended that this was penal clause and according to them they had completed the payment as per clause (1) of Compromise Decree and hence decrees stood satisfied. The decree holders, on the other hand, contended that amount of Rs. 37,800/- each was to be paid by monthly instalments of Rs. 900/within due time and judgment debtors made default in payment of three instalments within time and therefore, the entire amount as mentioned above became due and payable. The trial Court heard respective parties on the grievance made and found that the condition incorporated by default clause was a penal condition and therefore not enforceable. It found that in Special Execution Case No. 176 of 2004, only amount of Rs. 900/- was to be recovered by decree holders while in other execution amount of Rs. 1,800/- was due to the decree holders. Thus, in effect the lower Court held that decree holders were entitled to recover total amount of Rs. 37,800/- each in both the executions.
4. Shri Gilda, learned counsel appearing for the petitioners has contended that the lower Court has erroneously placed reliance upon the judgment of the Hon'ble Apex Court in the case of Prithvichand Ramchand Sablok vs. S. Y. Shinde, reported at AIR 1993 SC 1929. He contends that the law as laid down by the Hon'ble Apex Court has not been properly understood and appreciated by the trial Court and hence there is failure on its part to exercise jurisdiction available to it. He contends that the compromise clearly mentioned that concession was given to judgment debtors to pay amount of Rs. 37,800/- within specified time and if the amount was not paid accordingly, the entire amount as claimed was liable to be recovered. He has placed reliance upon the judgments of Hon'ble Apex Court in the case of Sova Ray vs. Gostha Gopal Dev, reported at AIR 1988 SC 981, K. P. Subbarama Sastri vs. K. S. Raghavan, reported at AIR 1987 SC 1257. in State of Goa vs. Placido Braganza reported at 2002 (1) Mh.L.J. 370. in Rabindra Narain vs. Nirmala, reported at AIR 1978 Pat. 162. N. Kullayyappa vs. N. Dastagiri. reported at AIR 1982 A. P. 154, Sri Ram vs. State Bank of Bikaner, reported at AI
