RAMAYAN DUBEY Vs. CHITRADEO RAI

JUDGEMENT

(1.) This appeal by the Judgment-debtors arises out of an objection preferred by them under Sec- tion 47 of the Code of Civil Procedure. The decree under execution is a compromise decree passed in a money suit which was instituted by the decree-holders on the foot of a handnote for Rs. 2178/-. The total claim in the suit was for Rs. 2944/10/-. But by compromise between the parties, it was decreed that the judgment-debtors would pay to the decree-holders a sum of Rs. 2.000 on or before the 23rd October 1958 in full satisfaction of their dues up-to-date. There was also a default clause in the compromise petition, which was made a part of the decree, to the effect that if the judgment-debtors did not pay the sum of Rs. 2,000/- to the decree-holders by the appointed date, then the claim laid in the suit would stand decreed in full together with costs of the suit and future Interest at the rate of 6 per cent per annum. The judgment-debtors failed to make the payment by 23-10-1958. Thereafter the decree-holders made an application for amendment of the decree, which was allowed, and the following words were inserted in the decree:

(2.) The judgment-debtors put forward two objections to the execution (i) that the default clause of the decree was unenforceable, being in the nature of a penalty within the meaning of Section 74 of the Contract Act, and. (ii) that the application for execution was barred by limitation.

(3.) Both these objections were overruled by the executing Court. As to the first objection, the executing Court held that it was not competent to go behind the decree, but to execute it as it stood. On the question of limitation, the executing Court held that the starting point of limitation was the 28th January, 1959, when the decree was amended, and the execution petition having been filed within three years from that date, it was within time.