RAGHUNANDAN PRASAD Vs. GHULAM ALA-UD-DIN BEG

JUDGEMENT

(1.) THIS is an appeal from an order passed by the court of the Subordinate Judge of Bareilly in execution proceedings. The plaintiff decree-holder had brought a suit for damages for Rs. 5,346 for failure on the part of the defendant to deliver sugarcane juice. A decree was passed in terms of a compromise arrived at between, the parties. The terms of the decree were that the defendant was to pay Rs. 2,600 to the plaintiff within one month of the date of decree and on his failure to do so, he was to be liable to pay simple interest at 3 per cent, per mensem from the date of the decree. Payment was not made by the judgment-debtor within the time stipulated, so the decree-holder applied for execution for the principal sum of Rs. 2,600 with interest at the stipulated rate. The judgment- debtor objected that the contract was penal, and that he should be relieved from the burden thereof. The learned Subordinate Judge held that though the contract was embodied in a decree, the executing court was entitled to interfere and granted relief to the judgment-debtor by ordering interest to be recovered at the rate of 1 per cent, per mensem.

(2.) WE are of opinion that the view of law taken by the lower court was not correct. The executing court cannot go behind the decree. As laid down in Kalipada Sarkar V/s. Hart Mohan Dalai (1916) I.L.R. 44 Calc. 627, the court executing the decree must take the decree as it stands and has no power to go behind it or entertain an objection to the legality of the decree. The terms of Section 74 of the Contract Act are not applicable to a decree. WE think that the decree-holder is entitled to recover the interest at the rate prescribed in the decree. WE, therefore, set aside the order of the lower court, decree this appeal and direct execution to take place as applied for by the decree-holder. The appellant shall receive costs of this Court.