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PATNA HIGH COURT
V.Ramaswami and Sarjoo Prasad JJ.
Harnath Rai Brijraj
Versus
Hirdai Narain Kumar
Appeal From Original Order No. 342 of 1948 ;
Decided On : JANUARY 27, 1953
EXECUTION OF DECREE - COMPROMISE DECREE - DEFAULT IN PAYMENT OF INSTALMENTS - JURISDICTION OF EXECUTING COURT - RES JUDICATA - INTEREST ON INSTALMENTS IN DEFAULT - INTERPRETATION OF COMPROMISE DECREE.
Fact of the Case:
The decree-holders obtained a consent decree for a sum of Rs. 26,246 with interest at 6% per annum and costs. The decree provided for payment in instalments of Rs. 22,279-12-0 in full satisfaction of the decree. The judgment-debtors defaulted in payment of certain instalments and the decree-holders levied execution. The judgment-debtors objected, claiming that they had made no default and that the decree-holders had refused to accept a valid tender of payment. The executing court found in favor of the judgment-debtors and dismissed the execution petition. The decree-holders appealed, but the High Court upheld the decision of the executing court.
Finding of the Court:
The executing court had jurisdiction to decide whether the decree-holders were entitled to execute the decree for the entire amount or any part thereof. The decision of the executing court that there was no default on the part of the judgment-debtors and that the decree-holders were not entitled to execute the decree for the entire amount was final and binding on the parties. The decree-holders were not entitled to levy a fresh execution on the ground of alleged fresh defaults during the pendency of the previous execution case. The decree-holders were not entitled to recover interest on the instalments in default, as they had failed to claim this interest in the previous execution case and had allowed the execution case to be dismissed on part satisfaction.
Issues: 1. Whether the executing court had jurisdiction to decide whether the decree-holders were entitled to execute the decree for the entire amount or any part thereof. 2. Whether the decision of the executing court that there was no default on the part of the judgment-debtors and that the decree-holders were not entitled to execute the decree for the entire amount was final and binding on the parties. 3. Whether the decree-holders were entitled to levy a fresh execution on the ground of alleged fresh defaults during the pendency of the previous execution case. 4. Whether the decree-holders were entitled to recover interest on the instalments in default.
Ratio Decidendi: 1. The executing court had jurisdiction to decide whether the decree-holders were entitled to execute the decree for the entire amount or any part thereof, as the question related to the execution, discharge and satisfaction of the decree. 2. The decision of the executing court that there was no default on the part of the judgment-debtors and that the decree-holders were not entitled to execute the decree for the entire amount was final and binding on the parties, as it was not appealed against. 3. The decree-holders were not entitled to levy a fresh execution on the ground of alleged fresh defaults during the pendency of the previous execution case, as the matter had already been decided by the executing court and the decision was final and binding on the parties. 4. The decree-holders were not entitled to recover interest on the instalments in default, as they had failed to claim this interest in the previous execution case and had allowed the execution case to be dismissed on part satisfaction.
Final Decision: The appeal was dismissed with costs and the cross-objection was allowed.
Sarjoo Prosad, J.
1. This appeal is by the decree-holders and arises out of an execution proceeding in which the learned Subordinate Judge executing the decree held that the decree-holders were not entitled to realise in execution the sums claimed by them as due under the decree except for a small amount of interest .which, in his opinion, remained unsatisfied on account of the decretal dues. There is also a cross-objection by the judgment-debtors.
2. The facts giving rise to this appeal are that the decree-holders obtained by consent a decree on the Original Side of the Calcutta High Court for a sum of Rs. 26,246 against the judgment-debtors respondents with interest at 6 per cent per annum and also for incidental costs as taxed under the allocator. The decree further provided for payment in instalments of a sum of Rs. 22,279-12-0 with costs in full satisfaction of the decree. The material terms of settlement are embodied in paragraphs 4 to 7 of the compromise decree. In order to appreciate the points urged, it is necessary to refer in extenso to the terms embodied in the paragraphs in questions :
"4. The defendants will pay the costs of the suit to the plaintiffs attorneys and a sum of Rs. 1,000 towards part payment of the decretal amount to the plaintiffs in manner following : (a) Rs. 500 on account of part payment of costs on or before the 30th Falgun 1346 F.S.
(b) The balance of the taxed costs on or before the 30th Sravan 1346 F. S. or within. 1 month of service of the allocatur of taxed costs on the respective attorneys of the adult defendants whichever date is later.
(c) Rs. 1000 towards decretal amount on or before the 30th Sravan 1346 F. S.
5. If the defendants will besides payments mentioned in Clause (4) hereof pay the sum of Rs. 20,000 in the manner following with interest on the amount of instalment as stated in Clause (6) hereof the plaintiffs will accept the same in full satisfaction of the balance of the decretal amount herein. All instalments due will be payable to the plaintiff firm Harnathrai Binjrai at Bhagalpur and all receipts signed by them will be sufficient discharge to the defendants for such payment. (i) Rs. 2000 towards the decretal amount on or before 30th Sravan 1347 F.S.
(ii) Rs. 2000 towards the decretal amount on or before 30th Sravan 1348 F.S.
(iii) Rs. 2000 towards the decretal amount on or before Sravan 1349 F. S.
(iv) Rs. 2000 towards the decretal amount on or before 30th Sravan 1350 F.S.
(v) Rs. 2000 towards the decretal amount on or before 30th Sravan 1351 F. S.
(vij Rs. 2000 towards the decretal amount on or before 30th Sravan 1352 F.S.
(vii) Rs. 2000 towards the decretal amount on or before the 30th Sravan 1353 F. S.
(viii) Rs. 2000 towards the decretal amount on or before 30th Sravan 1354 F.S.
(ix) Rs. 2000 towards the decretal amount 011 or before 30th Sravan 1355 F.S.
(x) Rs. 2000 towards the decretal amount on or before 30th Sravan 1356 F. S.
6. In case of the defendants failing to pay any of the instalments of Rs. 2000 on or before the due dates of payment hereinbefore stated they shall be liable to pay interest on the amount of instalment in default at the rate of 6 per cent, from the date of default till payment.
7. In case of default of payment in any of the payments referred to in Clause (4) or in default of payment of any two consecutive instalments of Rs. 2000 referred to in Clause (5) hereof and interest referred in Clause (6) hereof the plaintiffs will be entitled to execute the decree for the entire amount for the time being remaining due under the decree. The plaintiffs will not be bound to accept any instalment so long as any prior instalments remain unpaid."
It is obvious from the above that in case the instalments were regularly paid as agreed to between the parties, the decree-holders accepted to take a sum of Rs. 21,000 with costs in full satisfaction of the decree.
3. It appears that on 30-6-1941, the decree-holders levied Execution Case No. 134 of 1941. In
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