JAMOTIBAI SATYANARAYAN BAJAJ Vs. ABDUL RAZZAK USMAN

JUDGEMENT

(1.) Heard Shri. Gilda, learned counsel for the petitioners and Shri. Nemade, learned counsel for the respondents finally by consent.

(2.) The petitions are filed by the decree holders challenging the common order dated 28-4-2005 passed below Exh. 23 in Special execution Case No. 175 of 2004 and Exh. 16 in special Execution Case No. 176 of 2004. The executing Court has by said order accepted the contention of respondents/judgment debtors that after effecting balance payment of Rs. 1,800/-each towards above mentioned execution cases, the decrees obtained against them would be satisfied if balance amount of Rs. 900/- and rs. 1,800/- were paid to decree holders.

(3.) It appears that the respondents moved these applications at Exhs. 23 and 16 before the lower Court for recording satisfaction of decrees passed against them in Special Civil suit Nos. 125 of 1995 and 124 of 1995. The Suits were amicably settled before Lok Adalat. In one suit giving rise to Special Execution No. 175 of 2004, claim of present petitioners was rs. 1,17,398. 95 ps. and it has been settled by accepting amount of Rs. 37,800/ -. In other suit which forms subject matter of Special Execution case No. 174 of 2004, total claim of petitioners was Rs. 1,30,692. 76 ps. and it was compromised by accepting amount of Rs. 37,800/ -. The respondents accordingly wanted to complete payment of Rs. 37,800/- only in both the matters. They paid substantial amount and wanted balance amount to be certified. The payment made has been acknowledged and accepted by the petitioners. However, there was one default clause in Compromise Decree which envisaged that if judgment debtor made default in payment of any three installments within time, decree holder would be entitled to recover entire amount of Rs. 1,17,398. 95 ps. or Rs. l,30,692. 76 ps. The judgment debtors contended that this was penal clause and according to them they had completed the payment as per clause (1) of Compromise decree and hence decrees stood satisfied. The decree holders, on the other hand, contended that amount of Rs. 37,800/- each was to be paid by monthly installments of Rs. 900/- within due time and judgment debtors made default in payment of three installments within time and therefore, the entire amount as mentioned above became due and payable. The trial Court heard respective parties on the grievance made and found that the condition incorporated by default clause was a penal condition and therefore not enforceable. It found that in Special Execution case No. 176 of 2004, only amount of Rs. 900/-was to be recovered by decree holders while in other execution amount of Rs. 1,800/- was due to the decree holders. Thus, in effect the lower court held that decree holders were entitled to recover total amount of Rs. 37,800/- each in both the executions.