HUMAYUN PROPERTIES LTD Vs. FERRAZZINIS PRIVATE LTD

JUDGEMENT

(1.) This is an appeal against an order of Mitter, J., dated 9th March, 1959. The application was for the execution of a consent decree dated 14th December, 1955 made in Suit No. 183 of 1955 (Humayun Properties Ltd. v. Ferrazzinis (Private Ltd.). The learned Judge has held that there will be "no order' on the application and that the parties should bear their own costs. The facts are shortly as follows : The plaintiff in the suit, Humayun Properties Ltd., a company incorporated under the Indian Companies Act, is the owner of premises No.20, Lindsay Street in Calcutta known as Humayun Court". A portion of the said premises was demised to the defendant, Ferrazzinis Limited, now Ferrazzinis (Private) Limited. The said Suit No.183 of 1955 was instituted in this Court by the plaintiff against the defendant for possession of the said premises, arrears the defendant for possession of the said premises, arrears of rent and mesne profits. An application was taken out in the suit for final judgment under the provisions of Chapter XIIIA of the rules of the Original Side of this Court. At the hearing of the said application, the parties settled the suit and a decree was passed by consent on 14.12.1955. The relevant terms are as follows:

(2.) On 23.12.1957 an application was made by tabular statement by the plaintiff decree-holder a copy of which is to be found in the Paper Book at pages 1 to 8. In column 7 of the said tabular statement we find the following entry:

(3.) The decree-holder has asked for possession of the premises in the occupation of the defendant. It would be observed that there are two grounds upon which it is claimed that the plaintiff decree-holder is entitled to ask for immediate possession. The first is a breach of clause 7 and the second is a breach of clause 4, of the consent decree. At the hearing of the application, the decree-holder gave up the ground of any breach of clause 7 and, so we need not consider that at all. Clause 4 requires that the defendant should pay Rs.1550/- per month as mesne profits or damages, within 7 days of each succeeding month, and clause 5 lays down that in default of such payment for two months, the plaintiff was to be at liberty to execute the decree forthwith. Nothing has been said before us about any payments prior to January, 1957. I take it, therefore, that no question arises upon such payments. We are concerned in this case, with the payments between January, 1957 and December, 1957. According to the judgment-debtor, mesne profits for this period were paid by cheque and received by the decree-holder, but it is admitted that none of them were paid within the stipulated time, that is to say, the 7th day of each succeeding month. None of these payments were recorded or certified by Court. the legal effect of this will be presently considered. According to the judgment-debtor payments were made as follows: <FRM>JUDGEMENT_29_CALLT1_1963Html1.htm</FRM>