JHURAI LAL Vs. MOHIN DAS BOSE

JUDGEMENT

(1.) THIS is an Execution Second Appeal arising out of the following facts: The decree-holder respondents filed a suit for ejectment and arrears of rent against the judgment-debtor appellant. They prayed for ejectment of the judgment-deb tor appellant from three portions of land. Over one portion a Gumti stood, and the other two portions were open pieces of land. The suit resulted in a compromise decree. By this compromise decree, the defendant was allowed to pay all the ar rears of rent within a period of three months. He was also to give possession of the two vacant pieces of lands within a month. The defendant judgment-debtor was allowed to remain tenant of the Gumti. But, if the first two conditions were not satisfied within the time stipulated in each of them, the whole decree was to be executed with costs, including that por tion over which the defendant-appellant was allowed to remain as tenant.

(2.) ACCORDING to the decree-holder respondents, the appellant made defaults in the first two conditions and, therefore, the decree was executed for all the reliefs contained in the plaint, as stipulated in the compromise decree. The appellant, inter alia, pleaded that there was a renovation of contract in so far as the decree-holders accepted the rent of subsequent periods and, therefore, the decree was not execut able. The second ground was that the de fault clause was a penal clause, as provid ed under Section 74 of the Indian Contract Act. The third ground was that the de cree was a nullity. The fourth ground was that the decree has been fully satisfied. These objections did not find favour with the executing Court and the objection fil ed by the judgment-debtor appellant under Section 47, C. P. C., was dismissed. Be ing dissatisfied the judgment-debtor appel lant filed an appeal. The lower appellate Court agreed with the findings of the exe cuting Court and dismissed the appeal. Hence, this execution second appeal.

(3.) IN order to appreciate this point it has to be seen as to what is the penal clause in the Indian Contract Act. Sec tion 74 of the Indian Contract Act speaks of a penal contract. In the instant case, the penal clause is said to have been con tained in a compromise decree. A com promise decree is essentially based on a contract. A perusal of the wordings of Section 74 of the Indian Contract Act leaves no room for doubt that it would cover a case where a compromise decree is sought to be enforced by way of exe cution. There is preponderance of autho rities in support of the fact that the pro visions of Section 74 of the Indian Con tract Act apply to a compromise decree as well, and, therefore, it is needless to quote authorities on this point.