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HIGH COURT OF CALCUTTA
P. N. MUKHERJEE, AMARESH ROY
BISHWANATH KUNDU - Appellant
Versus
SUBALA DASSI - Respondent
A. F. O. O. 371 Of 1958
Decided On : JULY 05, 1961
EXECUTION OF DECREE - SET OFF - RESTITUTION ORDER - PENALTY - RELIEF IN EXECUTION COURT - INTEREST ON ARREARS OF MONTHLY ALLOWANCE.
Fact of the Case:
The appellant and his mother, the respondent, were involved in a partition suit. Under a preliminary decree, the respondent was declared the owner of one-fifth share of the properties involved in the suit. The decree was adjusted by a subsequent consent order, whereby the respondent agreed to take a monthly allowance of Rs. 90/- per month from the appellant in lieu of her one-fifth share. A further agreement between the parties provided that the respondent would be entitled to claim payment of the monthly allowance at double the rate in case of default for three consecutive months. This agreement was incorporated in a petition of compromise filed before the Court and a final partition decree was made accordingly.
Finding of the Court:
The Court held that the dismissal of the appellant's earlier objection petition for default did not operate as a bar to the present objection petition. The Court also held that the appellant was not entitled to a set off in the present proceeding on account of the restitution order in respect of the sum of Rs. 1250/- mentioned hereinbefore. However, the Court held that the stipulation for payment at double the rate was a stipulation by way of penalty and that the appellant was entitled to relief in respect of the same as part of a contract, providing for penalty, even though the said contract has been incorporated in a decree of court.
Issues: 1. Whether the dismissal of the appellant's earlier objection petition for default barred the present objection petition? 2. Whether the appellant was entitled to a set off in the present proceeding on account of the restitution order in respect of the sum of Rs. 1250/- mentioned hereinbefore? 3. Whether the stipulation for payment at double the rate was a stipulation by way of penalty and whether the appellant was entitled to relief in respect of the same as part of a contract, providing for penalty, even though the said contract has been incorporated in a decree of court?
Ratio Decidendi: 1. A dismissal for default would not certainly operate as res judicata and would not conclude the matter even by way of finality of litigation. 2. The restitution order was in respect of an amount received by the respondent on account of her minor daughters and as their guardian and, possibly, on behalf of herself also, and although there was an order for restitution in respect of the said amount possibly against herself also along with her said minor daughters, it is difficult to bring the case within either Order 21 rule 18 or Order 21 Rule 19 of the Code of Civil Procedure or within any permissible extension of the same on equitable grounds. 3. The stipulation for payment of double the amount in case of default for three consecutive months was a stipulation by way of penalty and that, although the same forms part of a decree of Court, as the said term was really incorporated under a compromise, it cannot be regarded except as part of a compromise decree,. so as to be subject to relief even in the executing court.
Final Decision: The Court decreed the appeal to the extent that the respondent's claim for recovery of arrears of monthly allowance in the present execution at double the rate, namely, at Rs. 180/- per month in place of the original rate of Rs. 90/- per month, would be allowed at the aforesaid original or reduced rate of Rs. 90/- per month with interest at the rate of 8 per cent per annum from the date of default until payment or adjustment as aforesaid.
( 1 ) THIS is an unfortunate proceeding between a mother and her son. Under a partition decree, the mother, who is the respondent before us was declared to be the owner of one-fifth share of the properties, involved in the said partition suit. This decree, which was in the nature of a preliminary decree for partition, was made on May 22, 1947, in the aforesaid partition suit (Title Suit No. 39 of 1946 of the Second Court of the Subordinate Judge of Howrah ). This preliminary decree was adjusted by a subsequent consent order, dated October 1, 1948, whereby the mother decree-holder, who is the respondent before us, agreed to take a monthly allowance of Rs. 90/-per month from the appellant son in lieu of her aforesaid one-fifth share making the said allowance a charge on the said son's allotment In the said order for adjustment, there was a provision also for maintenance and marriage expenses of the four sisters of the appellant.
( 2 ) ON February, 10, 1949, there appears to be a further agreement between the parties whereunder, the mother decree-holder before us, became prima facie entitled to claim payment of the aforesaid monthly allowance at double the rate, fixed above, in case of default for three consecutive months. This agreement was incorporated in a petition, described as a petition of compromise, filed before the Court below with a prayer that the Commissioner for Partition be directed to incorporate a term to the above effect in his report. Thereafter, the Ccmmissioner for partition submitted his report, making, inter alia, a provision therein to the above effect, and, in terms of the same, a final partition decree was made on August 20, 1949.
( 3 ) THERE does not appear to have been much trouble between the present parties with regard to the payment of the aforesaid monthly allowance of the decree-holder, respondent until about the year 1954, although, there were several other. proceedings between the parties to the partition. suit in the mean lime. Of these proceedings, it is necessary to mention one, which will be relevant for purposes of our decision of the present appeal.
( 4 ) ON January 31, 1951, the present appellant and his co-receiver in the partition suit-were directed to deposit at the rate of Rs. 25/-per month for the several minor daughters of the present respondent, to whom maintenance had been allowed under the first adjustment on consent, referred to hereinbefore, from December, 1949, to September, 1950, within 10 days. This, however, was not done, and, thereafter, on February 28. 1951, there was an order on the present appellant to pay Rs. 1250/- on the above account. This order also does not appear to have been complied with and on March 3, 1951, the Court gave liberty to the claimants of the said amount to proceed against the present appellant and actually, on April 12, 1951, an application was made by the present respondent on behalf of her aforesaid minor daughters in Title Execution Case No. 17 of 1951, for realisation of the above amount of Rs. 1250/- from the personal property of the present appellant. The matter, eventually, came up to this Court in appeal, and, under an interim order of this Court, the above amount had to be deposited by the present appellant in the Court below, and, therefore, the present decree-holder respondent on execution of a personal bond and on furnishing security, was allowed to withdraw the said amount in terms of an order of this Court. The present appellant's appeal in the said proceeding was, eventually, allowed and he obtained an order for restitution of the above sum of Rs. 1250/- against the decree-holders concerned, namely, the present respondent's minor daughters aforesaid represented by her, and possibly against herself also, on July 24, 1954. On February 5, 1953, a sum of Rs. 360/-appearg to have been adjusted by an order of Court against the present respondent's dueg on account of the monthly allowance, payable to her as aforesaid
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