SHAH TRIBHUVANDAS LALLUBHAI Vs. SHAH CHHITALAL CHUNILAL

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 Sankheda 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 Barjorji Shapurji v. Madhavlal Jesingbhai, 36 Bom LR 798: ( AIR 1934 Bom 370), Mohiuddin v. Mt. Kashmiro Bibi, AIR 1933 All 252 (FB), and Shyam Sunder v. Indramoni Das, AIR 1951 Orissa 46. It is contended that in the case of a decree passed upon a compromise, the principle of Section 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. 3800/- 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 Section 33 of the Civil Procedure Code, after hearing the case, the Court shall pronounce the judgment and on such judgment a decree shall follow. It is provided in Section 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, refers to judgment and decree and Rule 6 of Order 20 provides as under:

(3.) The appeal is dismissed but no order as to costs.