BAHADURSINGH GAINDSINGH GUPTA Vs. GULABDEVI ONKAR PRASAD

JUDGEMENT

(1.) IN Civil Suit No. 61-A of 1965, a compromise decree was passed on July 25, 1972, under which an amount of Rs. 13,000 was payable by the defendants (judgment-debtors) towards rent of the suit accommodation, to the plaintiff (decree-holder) a sum of Rs. 6,500 was paid on July 25, 1972. The defendants (judgment-debtors) had to pay the remaining amount of Rs. 6,500 in two yearly instalments of Rs. 3,250 each. The first instalment was payable on July 25, 1973, and the second on July 25, 1974. There was also an exigibility clause stipulating that in case of default in payment of any instalment, not only the full amount would be payable in lumpsum, but also the judgment-debtors shall be liable to be ejected from the plot and the decree-holder would also be entitled to forfeit the superstructure constructed by the judgment-debtors. The judgment-debtors have a rice mill on the plot. These facts are not in dispute.

(2.) IT appears that the judgment-debtors did not pay the first instalment on the due date. The decree-holder, therefore, took out execution of the decree. The judgment-debtors sought indulgence of the Court stating that judgment-debtor No. 1 is an old and Pardanashin lady, while judgment-debtor No. 2 was not in good health and was confined to bed. The judgment debtors, therefore, prayed for extension of time to deposit the amount of instalments. Eventually, on September 11, 1972, they applied to the Court for permission to deposit rs. 7257. 50. This was allowed by the executing Court, whereupon the judgment-debtors deposited on September 13, 1973, a sum of Rs. 7,257. 50.

(3.) THE decree-holder opposed the judgment-debtors' application on the ground that in the case of a compromise decree, the Court was bound to execute it as it was and could not relieve the judgment-debtors of the consequences stipulated in the compromise. The learned Judge of the executing Court held that section 74 of the Contract Act applies to a case of a compromise decree also and the Court is competent to relieve parties against any term in the con-sent decree, which operates as penalty. Before the executing Court, the judgment-debtors said that the value of the superstructure was about Rs. 55,000, while, on the other hand, the decree-holder's estimate was that the value of the superstructure was only Rs. 15,000.