RAGHAVAN NAMBIAR Vs. KUNHAMU HAJI

JUDGEMENT

(1.) The 6th respondent in the lower court is the appellant before us. The appeal is directed against an order in execution. The first respondent who is the plaintiff, sued the defendants on the basis of a pro-note. The plaint claim was for Rs. 10,045. 94 Np. The suit was compromised and according to the terms of the compromise, the defendants were to pay Rs. 7,500/- to the plaintiff in full settlement of the claim of the plaintiff. It was also agreed between the parties that this sum of Rs. 7,500/- was to be paid in three yearly instalments, and that in default of payment of any one of the instalments, the defendants were liable to pay the whole amount claimed in the plaint in a lump. As the defendants did not pay the amount according to the terms of the compromise decree, the plaintiff began to execute the decree by attachment of certain properties belonging to the tarwad of the defendants 2 to 5. The appellant got himself impleaded in the lower court as a junior member of the tarwad and questioned the legality of execution, mainly on two grounds. He contended that the provision in the decree for payment of the plaint amount of Rs. 10,045.94 Np in default of payment of the smaller sum of Rs. 7,500/- was in the nature of a penalty, and that the defendant should be relieved against it. He also contended that the other members of the tarwad were necessary parties to the execution proceedings.

(2.) With respect to the first point, the lower court came to the conclusion that the provision in the compromise decree for revivor of the original liability in default of payment of the smaller sum was not in the nature of a penalty and that therefore execution was legally levied.

(3.) Before us the appellant contended that there was no adjudication or admission that the amount claimed in the plaint was legally due to the plaintiff; and as the primary liability was not settled between the parties either by decree of Court or by agreement, the undertaking to pay the plaint claim in default of payment of a lesser sum savours of a penalty. In support of this contention reliance was placed on the ruling reported in Chhunna Mal v. Hanuman Bakhsh (103 Indian Cases 805). The head-note of the report correctly represents the principle laid down in the judgment.