M L PURI Vs. SUNDER DASS

JUDGEMENT

(1.) The Civil Revision is directed against the order of an Additional District Judge dated April 28, 1980, by which he dismissed the execution application holding that the decree stands satisfied.

(2.) The facts, in brief, are that the petitioner had brought a suit for recovery of Rs. 30,800/- under Order 37 of the Civil Procedure Code. Leave to defend application was moved which was allowed and later on August 30, 1979, the parties had compromised and their statements were recorded and a decree was passed. It was mentioned in the decree that the suit stands decreed for recovery of Rs. 30,800/- with costs and future interest @ 12% per annum from the date of the suit till payment but the judgment debtor was given benefit of satisfying the said decree by making the payment of Rs. 15,000/- only by way of monthly instalments of Rs. 3,000/- each. It was made clear in the decree that in case the judgment-debtor was to commit any two consecutive defaults in payment of the said instalments, then the whole of the balance amount of the decree was to become recoverable at once from the judgment- debtor. The first instalment was to be paid on or before September 10, 1979 and the subsequent instalments were to be paid on 10th of every succeeding month. The first instalment of Rs. 3,000/- which was to be paid on September 10, 1979, came to be paid admittedly on September 21, 1979; the second instalment which was payable on or before October 10, 1979, came to be paid on November 3, 1979 and the third instalment which was payable on or before November 10, 1979, came to be paid on December 11, 1979. The subsequent two final instalments which were payable on December 10, 1979 and January 10, 1980, respectively came to be deposited in Court on January 17, 1980. So, all the five instalments were not paid in time, as stipulated by the decree, by the judgment-debtor.

(3.) The petitioner-decree holder brought out execution for recovering the balance amount of the decree. The judgment-debtor came up with the plea before the Executing Court that the decree-holder having accepted the third instalment of Rs. 3,000/- on December 11, 1979, would be deemed to have condoned the default made by the judgment-debtor in paying the earlier instalments and thus, the whole amount of the decree has not become recoverable and he also took the plea that the judgment-debtor was searching for the decree-holder for paying the remaining instalments but could not locate the decree-holder and thus, ultimately deposited the amount of two instalments together on January 17, 1980, in Court. The learned Executing Court, however, held that the judgment-debtor has substantially complied with the decree and there was no wilful default on the part of the judgment-debtor and moreover, the clause by which the whole amount of the decree of Rs. 30,800/- with costs and future interest was to be held recoverable was penal in nature and thus, the Executing Court came to the conclusion that the decree stands satisfied.