SANAPALA KRISHNAMURTHI Vs. POLAKKI APPANNA

JUDGEMENT

(1.) The short point that arises in this appeal is whether the consent decree, which is sought to be executed in this case, imposes a penalty, which can be relieved against, under the provisions of section 74 of the Contract Act?

(2.) A few facts necessary to appreciate the contentions raised by the parties are the following : The appellant herein filed the suit O.S.No. 5 of 1970 on the file of the District Munsif's Court, Itchapuram against the respondent herein on the basis of promissory note dated 21st January, 1967 for Rs. 2,500 executed by the respondent herein and his brother. As his brother died, his L.Rs. were brought on record, but they remained ex parts. Ultimately the suit ended in a compromise decree. The relevant portion of the compromise decree, which correctly incorporated the terms agreed upon, is as follows: (1) that the first defendant do pay to the plaintiff within a period of two morths from the date of the decre a sum of Rs. 1,800 in full quits of the suit claim as settled by the mediators giving up the remair.ing suit claim and costs and the first defendant do bear his own costs of the suit; (2) that in case the first defendant failed tc pay the amount within the stipulated time as per clause (1) above, the plaintiff do recover from the defendant, i.e., the first and 3 to 5 defendants, as claimed in the suit, a sum of Rs. 2,900 with interest .on Rs. 2,500 at 5% p.a. from the date of the suit i.e., 19th January, 1970 till . the date of realisation of the said sum and do also recover the sum of Rs. 420 towards costs of the suit.

(3.) The respondent herein did not pay the amount of Rs. 1,800 stipulated in the compromise decree within the period of two months. On the other hand he filed E.A. N". 26,of 1971 stating' that he has paid Rs.1,200 on 12th January,1971 as per receipt marked as Exhibit A-l and Rs. 400 on 5th February, 1971 as p'er the receipt marked as Exhibit A-2 and that there was an oral agreement between the parties to accept only Rs. 1,600 in full satisfaction of the decretal amount. He therefore wanted that full satisfaction of the decree should be entered.