TRIBHUVANDAS LALLUBHAI SHAH Vs. CHHITALAL CHUNILAL SHAH

JUDGEMENT

(1.) This arises out of a consent decree passed in a suit filed by the respondent. In the decree it was provided that if the amount of Rs. 1 801 was not paid by a particular date the appellant should pay Rs. 3 800 to the plaintiff. The decree was partly executed in Darkhast No. 29 of 1953 in the Shankheda Civil Court that is in the Court which passed the decree. It was then transferred to the Dabhoi Court for execution in regard to the balance of the money. The contention taken before the Dabhoi Court was that the decree was penal and that therefore there should be relief against forfeiture and relief against the penalty. This contention was rejected in appeal by the District Judge Baroda who held that there was no penal clause in the decree. He also held that the contention was barred by the principle of res judicata in view of the decision in Special Suit No. 103 of 1953 which was filed by the sons of the judgment-debtor to which the judgment-debtor was a party wherein an issue was raised whether the plaintiffs proved that the aforesaid decree was of a penal nature and hence not binding upon them. On that issue a negative finding was recorded. The learned Appellate Judge observed that although the judgment-debtor was not a co-defendant; the contention having been disposed of finally it operated as res judicata. On both these grounds he dismissed the appeal filed before him by the judgment-debtor. Hence this second appeal by the original judgment debtor.

(2.) In appeal it is contended that a penalty contained in a second decree can be relieved against even by the executing Court and reliance is placed on Burjorji Shapurji v Madhavlal Jesingbhai 36 B. L. R. 798 Mohiuddin v. Mt. Kashmiro Bibi A. I. R. 1933 Allahabad 252 and Shyam Sunder v. Indramoni Das A. I. R. 1951 Orissa 46. It is contended that in the case of a decree passed upon a compromise the principle of sec. 74 Contract Act would apply. It is difficult to agree with this contention. A decree as defined in section 2 of the Civil Procedure Code is the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to the matters in controversy in the suit decided. Therefore if the Court passes a decree that Rs. 3 800 are due to the plaintiff from the defendant that is an adjudication which conclusively determined the rights of the parties unless the decree is taken up in the appeal. Under sec. 33 of the Civil Procedure Code after hearing the case the Court shall pronounce the judgment and on such judgment a decrees shall follow. It is provided in sec. 34 of the Civil Procedure Code that interest can be ordered at such rate as the Court deems reasonable. In the case of a; suit for money the decree therefore adjudges the amount due to the plaintiff. Order 20 Civil Procedure Code refer-s to judgment and decree and Rule 6 of Order 20 provides as under:-

(3.) Rules in the First Schedule have effect as if enacted in the body of the Code (vide section 121 of the Civil Procedure Code). Appendix D to the First Schedule gives the Forms of the decrees. In the case of a suit for money the Pork shown is Form No. 2 and the reference is to section 34 of the Civil Procedure Code. That Form reads as follows:-