CHEN SHEN LING Vs. NAND KISHORE JHAJHARIA

JUDGEMENT

(1.) This appeal is by certificate against the judgment of the Calcutta High Court allowing the appeal from an order made on an application for execution at the instance of the decree-holder giving the judgment-debtor an opportunity to take appropriate proceedings for execution of some clauses in the decree which were apparently in his favour. The respondent is ex parate.

(2.) The appellant who was carrying on business under the name and style of C. S. Ling and Co., in Hongkong, filed a suit in the Supreme Court of Hongkong and obtained a decree against the respondent on the basis of which he filed a suit in the Calcutta High Court, being O. S. No. 3459/54 for the recovery of Rs. 15,73,161/- lent and advanced by the appellant to the respondent. The parties compromised and a consent memo was filed in terms of which a decree was passed on 22-2-1961 for Rs. 5,44,554.45 P. equivalent to 6,60,000 H. K. The consent decree provided as follows:-

(3.) The sole question that arises for consideration is whether the respondent who has paid Rs. 41,254.12 in terms of Clause 2 (a), can successfully urge that as the appellant had failed to comply with Clause 2 (f) by failing to make available to him or his nominee 4557 rubber tyres the decree could not be executed. The appellant's contention is that the conditions in Clause 2 (f) not having been fulfilled as the respondent had not paid the instalment of Rs. 41,254.12 mentioned in Clause 2 (b) on the fulfilment of which alone he was required to make available the siad tyres, the decree could be executed against the respondent. In other words, according to the appellant the payment of Rs. 41,254.12 np. To the respondent in terms of Clause2 (a) was not the first instalment referred to in Clause 2 (f), as it does not say that the amount was an instalment but was merely a payment. According to this contention the first instalment payable under the decree in fact is that payable under Clause 2 (b) and arises only after the payment mentioned in Cl. 2 (a). We do not think that on the terms of the decree the submission made on behalf of the appellant has any validity. It may be noted that the amount of Rs. 41,254.12 np. Which was to be paid under Clause 2 (a) is equal to the amounts payable as instalments under Clause (b) at six monthly intervals. Reading clauses 2 (a), (b) and (c) together the amount of Rupees 5,44,554.45 has to the paid in equal instalments of Rs. 41,254.12 in six monthly intervals, the first of such instalment being payable immediately to M/s. Sandersons and Morgans after the receipt of the authority from the Reserve Bank in terms of Clause 2 (a. The first instalment referred to in Clause 2 (f), therefore, is the first instalment payable under Clause 2 (a). That this is the understanding of the parties becomes amply clear from the correspondence between M/s. Sandersons and Morgans and the respondent's solicitors M/s. M. G. Poddar. It is not denied that the terms of the compromise were also drafted by M/s. Sandersons and Morgans and agreed to by the respondent's solicitors, and, therefore, the understanding of these solicitors as to the terms of the compromise lends added support to the construction placed by us on the terms of the compromise decree. M/s. Sandersons and Morgans in their letter dated 20-5-1961 write to the Respondent's solicitors as follows:-