M RAMALINGAM UDAYAR Vs. KATHALINGA PILLAI

JUDGEMENT

(1.) THIS Civil Revision Petition is directed against the order of the Court below dismissing E. P. No. 53 of 1983 in O. S. No. 47 of 1982 filed by the petitioner for realisation of certain amounts due under the decree by the sale of the hypotheca. Briefly stated, the facts, giving rise to the civil Revision Petition are as under: On 10-2-1969, respondents 1 and 2 executed a mortgage in favour of the petitioner herein for Rs. 30,000 and subsequently, on 20-8-1972, the mortgaged properties are sold by them in favour of the third respondent herein, subject to the direction that that amounts due under the mortgage dated 10-2-1969 in favour of the petitioner should be discharged by him. The mortgage not having been so discharged, the petitioner instituted O. S. No. 47 of 1982, Sub-Court, Villupuram, for the recovery of a sum of Rs. 39,300 and subsequent interest and costs. On 22-10-1982, a joint endorsement was made in the following terms: In accordance with the joint endorsement, the decree passed, by clauses 1, declared the amount due to the petitioner herein on the mortgage dated 10-2-1969 upto the of plaint (28-11-1980) as a sum of Rs. 30,000 for principal, Rs. 9,500 for interest on the said principal and Rs3,701. 75 towards costs, making in all Rs. 43,001. 75. Under clause 2 (i) of the decree, the respondents were directed to pay into Court on or before 22-8-1983 or any later date upto which time for payment may be extended by the Court, the said sum of rs. 43,001. 75 with interest on Rs. 30,600 at 12 per cent for annum from the date of plaint (2-11-1980) till the date of decree 22-10-1982 and thereafter at 6 per cent per annum till realisation. It was also further provided that if the respondents paid a sum of Rs. 41,000 in full quit within the time mentioned to the petitioner, the petitioner do certify that this decree is fully satisfied and that time was the essence of the contract, but in default, the petitioner do execute and recover the entire amount as stated supra and further that the decree be treated as a final decree. Admittedly, the respondents did not pay any amount to the petitioner within ten months from 22-10-1982, according to the decree But the third respondent therein filed E. A. No. 190 of 1983 in o. S. No. 47 of 1982 praying for an extension of time for payment of the amount of rs. 41,000 payable on or before 22-8-1983 by six months. That application was dismissed and the third respondent preferred C. R. P. No. 4650 of 1983 before this court. On 9-11-1983, this Court held that ample time had been given already to the third respondent to pay the amount and that a case was made and for extension of time and in that view, dismissed C. R. P. No. 4650 of 1983. It was, however, ob-served: 'however, the petitioner will have two months time from today to pay the amount.' Subsequently, the petitioner filed E. P. No. 53 of 1983 for the realisation of a sum of Rs. 49,893. 90 stated to be the amount due under the decree, as the third respondent had not availed himself of the concession granted for payment of a sum of Rs. 41,000 within the time granted under the consent decree. The third respondent contended that a sum of Rs. 2,000 had already been paid and after time was granted by this Court in C. R. P. No. 4650 of 1983, the balance of Rs. 39,000 had also been paid and thus the entire sum of rs. 41,000 had been paid and the decree discharged, as per the terms of the compromise decree. The executing Court took the view that the spirit of the order passed by this Court in C. R. P. No. 4650 of 1983 was to grant two months' time to the third respondent for the payment of a sum of Rs. 41,000 and since that amount had been paid, the execution petition has to be dismissed. Accordingly the execution petition was dismissed, the correctness of which is questioned in this Civil Revision Petition.

(2.) FROM the terms of the joint endorsement extracted earlier, it is seen that the parties agreed to the passing of a decree with reference to the claim as made in the plaint. However, by the payment of a smaller sum of Rs. 41,000 on or before 22-8-1983, the entire liability under the decree could be discharged. Time was made the essence of the bargain. The default clause provided that in event of the failure of the third respondent to pay a sum of Rs. 41,000 within the stipulated time, then, it would be open to the petitioner to execute the compromise decree and realise the amounts due to him and that the compromise decree should also be treated as a final decree. It is thus obvious from the terms of the compromise that the parties agreed that while the liability of the respondents would be far the entire amount as claimed in the plaint, yet, by payment of a sum of Rs. 41,000. On or before 22-8-1983, the decree would be treated as discharged. The provision for the discharge of the entire amount reliable under the decree by making payment of a smaller sum of Rs. 41,000 within the stipulated time, is only in the nature of a concession granted to the third respondent and if such a concession was not availed of, under the terms of the compromise, the amount recoverable under the decree could be realised. There is nothing penal in the provisions of the compromise, especially when the compromise is to the effect that a decree as prayed for in the plaint may be passed but that the decree could discharged by payment of a smaller amount within the stipulated time, though a larger amount could be realised under the decree in the event of default of such payment. Admittedly, in this case, the respondents did not pay the sum of Rs. 41,000 on or before 22-8-1983, instead, in EA. No. 180 of 1983 in O. S. No. 47 of 1982, the third respondent filed an application for extension of time by six months and that application was dismissed on 13-9-1983. The further revision preferred to this Court in C. R. P. No. 4650 of 1983 was also dismissed on 9-11-1983. While dismissing the Civil Revision petition, this Court stated that ample time had been given to the respondents to pay the amount and that this is not a fit case for extension of time. In that view, C. R. P. No. 4650 of 1983 was dismissed. The observation in the order of this Court in C. R. P. No. 4650, of 1983, as extracted earlier cannot have any reference whatever to the payment of Rs. 41,000 by way of concession, for, this Court had definitely stated that the Court below in e. A. No. 180 of 1983 was quite right in having declined to grant an extension of time for the payment of a sum of Rs. 41,000 and after having said that it is too difficult to understand this court having again granted two months'time for the payment of a sum of Rs. 41,000. To read the observation in the manner suggested by the learned counsel for the respondents and also by the Court below would completely nullify the order passed in C. R. P. No. 4650 of 1983, affirming in every detail, the order of dismissal of E. A. No. 180 of 1983, extension of time for payment of Rs. 41,000 cannot at all be inferred from the observation of this Court. Taking into account the dismissal of E. A. No. 180 of 1983 ,which was also affirmed by this Court on the ground that ample time had been already given to the respondents to avail themselves of the concession and that it was not a fit case for further extension of time, it will be absurd to read the observation granting two months'time as having reference to the concessional payment of Rs. 41,000, with reference to which the application for extension of time filed earlier had been dismissed and such dismissal was also affirmed. The grant of two months'time, if at all, have reference only to the amount recoverable under clauses 1 and 2 (i) of the decree, when the concession had not been availed of. In other words, the petitioner is entitled to recover the sum of Rs. 43,001. 75 with interest on Rs. 30,000 at 12 per cent per annum from the date of plaint 28-11-1980 till the date of decree 22-10-1982 and thereafter at 6 percent for annum till realisations. The Court below has proceeded on the footing that Rs. 41,000 had been paid and, therefore, no further amount is recoverable. This is obviously wrong for, only if a sum of rs. 40,000 had beed paid on or before 22-8-1983, that would have operated to discharge the entire liability under the decree. Since that was not done and the grant of two months'time by the order in C. R. P. No. 4650 of 1983 cannot have any reference whatever to the payment of the sum of Rs. 41,000, the payment of initial sum of Rs. 2,000 and another sum of Rs. 39,000 by the respondents subsequently, totalling to Rs. 41,000 long after 22-8-1983, would not enable the respondents to contend that the decree itself stood discharged. At best, the respondents would be entitled to take credit for the payment of rs. 41,000 towards the amount due and recoverable under the terms of the decree, as the concession had not been availed of and it will certainly not be open to the respondents to say that by reason of the payment of Rs. 41,000 the decree itself is wiped out. The Court below had not bestowed any attention in ascertaining whether the grant of two months'time in the order in c. R. P. No. 4650 of 1983 could have had any reference to the amount of Rs. 41,000 or the amount due and recoverable under the decree, when the concession was not availed of. The Court below was, therefore, in error in holding that the execution petition has to be dismissed.