NARESH KUMAR Vs. JAN MOHD

JUDGEMENT

(1.) Heard Mr. Dinesh Maheshwari for the revision-petitioner. An ex parte decree was obtained by the non-petitioners against the petitioner. The decree was for a sum of Rs. 15,654/-. The revision petitioner had moved an application under Order IX, Rule 13, CPC for setting it aside. An execution application was also filed by the decree-holder non-petitioner No. 1. The parties settled this matter in a Lok Adalat and in the application recording the settlement it was stated that the judgment-debtor would pay Rs. 9.000/- only towards the execution of the decree. It was further stated that this amount of Rs. 9,000/- will be paid in instalments of Rs. 1,000/- per month and in the event of any two consecutive defaults being committed in the payment of instalments the entire amount of the decree would be recoverable. The judgment-debtor revision-petitioner committed default in payment of two consecutive instalments with the result that the total payment was delayed by ten days. According to the decree-holder, because of the default, the entire amount of the decree has become due whereas the contention of the judgment-debtor is that the matter was settled in Rs. 9,000/- which had to be paid in instalments and the default clause was clearly penal in nature and could not, therefore, be enforced.

(2.) The learned Counsel for the revision- petitioner invites my attention to the decision of the Supreme Court in Prithvi Chand Ramchand Sablok v. S. Y. Shinde, which clarifies the distinction between a concession and a penalty.

(3.) The crux of the matter is whether the parties had settled the amount payable to the decree-holder as Rs. 9.000/- If that was so, the default in making payment by instalments would not be a penalty because the amount due is only Rs. 9,000/-. If the amount, due was found to be the decretal amount only but it was agreed that if the payment is made in instalments regularly the matter would be settled only at Rs. 9,000/- in that case it would be a concession.