Time granted for payment of decretal amount only.

Ratnam, J.

1. This Civil Revision Petition is directed against the order of the Court below dismissing E.P. No. 53 of 1983 in O.S. No. 47 of 1982 filed by the petitioner for realisation of certain amounts due under the decree by the sale of the hypotheca. Briefly stated, the facts, giving rise to the Civil Revision Petition are as under: On 10-2-1969, respondents 1 and 2 executed a mortgage in favour of the petitioner herein for Rs. 30,000 and subsequently, on 20-8-1972, the mortgaged properties are sold by them in favour of the third respondent herein, subject to the direction that that amounts due under the mortgage dated 10-2-1969 in favour of the petitioner should be discharged by him. The mortgage not having been so discharged, the petitioner instituted O.S. No. 47 of 1982, Sub-Court, Villupuram, for the recovery of a sum of Rs. 39,300 and subsequent interest and costs. On 22-10-1982, a joint endorsement was made in the following terms:

In accordance with the joint endorsement, the decree passed, by Clauses 1, declared the amount due to the petitioner herein on the mortgage dated 10-2-1969 upto the date of plaint (28-11-1980) as a sum of Rs. 30,000 for principal, Rs. 9,500 for interest on the said principal and Rs. 3,701.75 towards costs, making in all Rs. 43,001.75. Under Clause 2(i) of the decree, the respondents were directed to pay into Court on or before 22-8-1983 or any later date upto which time for payment may be extended by the Court, the said sum of Rs. 43,001.75 with interest on Rs. 30,600 at 12 per cent for annum from the date of plaint (2-11-1980) till the date of decree 22-10-1982 and thereafter at 6 per cent per annum till realisation. It was also further provided that if the respondents paid a sum of Rs. 41,000 in full quit within the time mentioned to the petitioner, the petitioner do certify that this decree is fully satisfied and that time was the essence of the contract, but in default, the petitioner do execute and recover the entire amount as stated supra and further that the decree be treated as a final decree. Admittedly, the respondents did not pay any amount to the petitioner within ten months from 22-10-1982, according to the decree But the third respondent therein filed E.A. No. 190 of 1983 in O.S. No. 47 of 1982 praying for an extension of time for payment of the amount of Rs. 41,000 payable on or before 22-8-1983 by six months. That application was dismissed and the third respondent preferred C.R.P. No. 4650 of 1983 before this Court. On 9-11-1983, this Court held that ample time had been given already to the third respondent to pay the amount and that a case was made and for extension of time and in that view, dismissed C.R.P. No. 4650 of 1983. If was, however, ob-served:

However, the petitioner will have two months time from today to pay the amount.

Subsequently, the petitioner filed E.P. No. 53 of 1983 for the realisation of a sum of Rs. 49,893.90 stated to be the amount due under the decree, as the third respondent had not availed himself of the concession granted for payment of a sum of Rs. 41,000 within the time granted under the consent decree. The third respondent contended that a sum of Rs. 2,000 had already been paid and after time was granted by this Court in C.R.P. No. 4650 of 1983, the balance of Rs. 39,000 had also been paid and thus the entire sum of Rs. 41,000 had been paid and the decree discharged, as per the terms of the compromise decree. The executing Court took the view that the spirit of the order passed by this Court in C.R.P. No. 4650 of 1983 was to grant two months' time to the third respondent for the payment of a sum of Rs. 41,000 and since that amount had been paid, the execution petition has to be dismissed. Accordingly the execution petition was dismissed, the correctness of which is questioned in this Civil Revision Petition.

2. From the terms of the joint endorsement extracted earlier, it is seen that the parties agreed to the passing of a decree with referenc