Khetu vs Jugti and others

Shamsher Bahadur, J.—This appeal is directed against the appellate order of the Senior Subordinate Judge, Hissar, holding that the enforcement of the compromise would be penal.

The Appellant Khetu instituted a suit on 11th of August, 1958 against Jugti and his two minor sons Chattar Singh and Rattan Singh for delivery of possession of 32 kanals of land which had been sold to him for a sum of Rs. 2,000/-. The sons of Jugti were represented by Ram Sarup and eventually a compromise was effected between the parties on 29th of August, 1959. As the controversy in this appeal centres round the terms of the compromise it would be well to set these out in full:

That the Defendants are owners of the suit land by gift but as their father has executed the sale-deed in favour of the Plaintiff, the Defendants, by way of pious obligations, are ready to pay Rs. 1,000/- towards the consideration and as to the rest of money amounting to Rs. 1,000/- the Plaintiff will be entitled to seek his remedy against Jugti and as such the suit be decreed on the condition that if the Defendants pay Rs. 1,000/- up-to 1-5-1960 to the Plaintiff then the suit of the Plaintiff shall stand dismissed and he will have no right in the land and if the Defendants Chattar Singh and Rattan Singh do not pay Rs. 1,000/- within time or do not deposit the same in Court then the suit shall stand decreed and Plaintiff will be entitled to take the possession of the land. The parties shall in both cases bear their own costs.

The suit was brought by the Plaintiff for recovery of the entire land of which Chattar Singh and Rattan Singh claimed to be the donees from their father. Chattar Singh and Rattan Singh wanted to honour the pious obligation of their father and accordingly agreed to pay Rs. 1,000/- as consideration money, the balance of Rs. 1,000/- was to be paid by Jugti himself. There were two further stipulations which are of great importance. Firstly, the sum of Rs. 1,000/- was to be paid by Chattar Singh and Rattan Singh by 1st of May, 1960 and if the amount bad been paid before that date the suit of the Plaintiff would have been dismissed. If, however, the sum was not so paid then the suit would stand decreed. Admittedly, the payment was not made on 1st of May, 1960. This sum was paid eleven days later on 11th of May, 1960. The decree-holder relying on the later clauses of the compromise deed applied for recovery of land in execution of the compromise decree.

Both the executing Court and the Senior Subordinate Judge in appeal have held that the clause in the compromise decree authorising the decree-holder to recover the suit land in default of payment of Rs. 1,000/- by first of May, 1960 amounted to a penalty which the Court could relieve the judgment-debtors from. The execution application has accordingly been dismissed.

In the appeal preferred by the decree-holder the only point for consideration is whether a clause empowering the decree-holder to obtain possession in default of payment amounts to a penalty or not. The law on the subject has been well and succinctly stated by Tek Chand J. in AIR 1933 23 (Lahore) . It was observed by the learned Judge as follows:

Where a compromise decree is passed the executing Court does not possess unrestricted power to relieve the defaulting party from the consequences of the default inasmuch as it cannot interfere with the effect of default if as a result thereof the decree-holder merely seeks to take away the concession which he had given to the judgment-debtor. If on the other hand as a result of the default the decree-holder is attempting to realise more than what was really due to him ; in other words, if he is enforcing a penalty ; then the Court is entitled to step in and to give relief to the judgment-debtor against the forfeiture.

This principle was re-affirmed by the same learned Judge in Mitha v. Remal Dass AIR 1937 Lah. 328.

The executing Court can only step in for the relief of the judgment-debtor if the enforcement of the compromise would amount to something penal, that is. to say, if the decree-holder seeks to acquire more than he is actually entitled to. As I have said before, the decree-holder in the present case sought nothing more than the possession of the entire land which he claims to have bought from Jugti. No doubt it was mentioned in the compromise that the minor sons of Jugti claimed this property to be their own as donee but they agreed in unmistakable terms to honour the obligations, which they called pious, of their father. The decree-holder agreed to accept the payment of Rs. 2,000/- provided the contribution of the sum of Rs. 1,000/- was made before a certain date. It is specifically mentioned in the decree itself that should the minors make a default in payment the decree-holder would be entitled to enforce his claim for possession of the entire land. Irresolutely decline to treat, this clause of the compromise as penal in nature. The tree test laid down by Tek Chand J. in the authorities mentioned aforesaid is whether the decree holder is seeking to acquire more than he had laid claim to and the answer to this question must be in the negative so far as the facts of the present case are concerned. The decree-holder has asked for nothing more than the possession of land which he initially claimed and which he had agreed to forego on a cash payment of Rs. 1,000/- by the minor sons before 1st of May, 1960. In other words,the decree-holder had agreed to grant a concession which was available only if the stipulated amount was paid on or before 1st of May, 1960. The failure on the part of the judgment-debtor to make the payment entitles the decree-holder in my opinion, to enforce the claim for recovery of land asked for in the suit and envisaged in the compromise decree itself.

The Courts below, in my opinion, are clearly in error in regarding the clauses of the compromise, a decree to be penal in nature. I would, accordingly, allow this appeal and set aside the order of the executing Court dismissing the execution application of the decree-holder. I would, however, leave the parties to bear their own costs.