P.C. Bahal vs Gurmail Singh

R.L. Anand, J.—This revision, I am disposing of after going through the grounds of revision as no assistance has been provided by the counsel for the parties. The controversy is very short.

The revision has been filed by Shri P.C. Bahal, resident of Kothi No. 70, Sector 2B, Chandigarh and it is against the order dated 17.9.1982, passed by the Court of Sub Judge Ist Class, Chandigarh who dismissed the execution application of the decreeholder Shri P.C. Bahal, filed against the J.D. Shri Gurmail Singh.

Shri P.C. Bahal filed a suit against Shri Gurmail Singh for the recovery of Rs. 18,000/. The matter was compromised between the parties and the suit was decreed by the trail Court in favour of the plaintiff Shri Bahal on 27.8.1980 in terms of the statements made by the parties. It was agreed upon that in case the judgmentdebtor pays a sum of Rs. 17,500/ to the decree holder, the entire decree shall be deemed to have been satisfied otherwise the decreeholder will be entitled to the remaining amount through execution. The amount was supposed to be paid as follows :

Rs. 5000/

27.8.1980

Rs. 6500/

31.12.1980

Rs. 6000/

31.3.1981

The judgmentdebtor did not pay the amount as per the stipulated dates. Rather he paid the amount in the following manner :

27.08.1980

Rs. 5000/

31.12.1980

Rs. 4000/

26.02.1981

Rs. 2500/

14.04.1981

Rs. 1000/

Further during the pendency of the execution the remaining amount was paid. According to the decreeholder, the J.D. committed the default and, therefore, he is liable to pay the remaining decretal amount in terms of the decree dated 27.8.1980 in lumpsum. Since the contract has not been adhered to by the J.D. Shri Gurmail Singh, therefore, the decreeholder is also entitled to interest.

Notice of the execution was given to the J.D. who stated that the entire amount under the decree has been paid to the D.H. and he has filed the present application fraudulently. It was also submitted that the decreeholder has consented to the late payment otherwise he would have made the payment in time.

The following issues were framed by the executing Court on 14.5.1980 :

Whether the J.D. has paid the entire decretal amount as alleged ? OPD

Whether the property sought to be attached is not liable to attachment ? OP JD

Relief.

While deciding issue No. 1, the executing Court held that the entire decretal amount has been paid to the decreeholder and the decree has been satisfied.

The following reasons were given by the executing Court which are contained in para No. 6 of the impugned order :

"The copy of the decree is Ex.O4. While decreeing the suit with costs and future interest at the rate of 6% per annum from the date of decree till realisation it was ordered that the decree shall be deemed to have been satisfied in case the judgmentdebtor paid a sum of Rs. 17500/ as under :

Rs. 5,000/

on 27.8.1980.

Rs. 6,500/

on or before 31.12.1980.

Rs. 6,000/

on or before 31.3.1981.

A copy of the compromise and the statements made in the Court are Ex.O1 and ExO2 respectively. Ex.O3 is chit pertaining the amounts received by the decreeholder from time to time. Ex.O3 shows that the following amounts were received by the decreeholder on the dates noted against each.

26.12.1980

Rs. 4000/

26.02.1981

Rs. 2500/

14.04.1981

Rs. 1000/

27.05.1981

Rs. 2500/

24.06.1981

Rs. 2500/

In addition a sum of Rs. 5,000/ had been paid to the decreeholder on August 27, 1980. In this way, the judgment debtor has paid a total sum of Rs. 17500/ to the decreeholder, although, the receipt of only a sum of Rs. 12500/ has been accepted by the decreeholder in his application. This application for execution was filed on May 15, 1981, but thereafter, the decreeholder voluntarily received a sum of Rs. 2500/ from the judgment debtor on May 27, 1981 and another sum of Rs 2500/ on June 24, 1981. The stand of the objector is that the decree was penal in the sense that in case of default the judgmentdebtor was required to pay much more than the sum of Rs. 17500/ by instalments, on the payment of which, the entire decree was to be deemed as satisfied. Learned counsel for the objector has referred to Deep Chand Mini v. T.C. Mini, A.I.R. 1974 Calcutta 222 to submit that timely payment of the instalment was not the essence of the control. He also referred to Shiva J. Maharaj Gohri Shankar Mahadevji v. Durga Parshad, AIR 1964 Allahabad 37. In this authority it was held that a decree providing for the payment of a certain amount by certain date and in default, the suit to be considered to have been decreed with regard to ejectment also is not executable as the decree regarding the ejectment is a penal provision. The ratio of this authority is fully attracted in the present case. Since the entire amount has been received by the decreeholder under the decree dated August 27, 1980, even after the filing of the present application, the decreeholder cannot now agitate and assert that the judgmentdebtor has committed default and contempt of the Court by not paying the amounts is time, Here is a case where the decreeholder has by his act condoned the delay in the payment of the instalment, although the decree regarding the payment of extra amount was a penal provision. On this issue, therefore, it is held that the entire decretal amount has been paid and the decree is fully satisfied. The issue is held for the judgmentdebtor".

The decreeholder Shri Bahal did not satisfy with the order dated 17.9.1982. Hence the present revision has been filed.

The grouse of the petitioner is that the J.D. had agreed to pay Rs. 17500/ on specific dates mentioned above and it was also observed by the executing Court that if the amounts are not paid by the stipulated dates, the decreeholder will be entitled to recover the amount, through execution. The last amount was paid by the J.D. on 24.6.1981 after the filing of the execution application. The last amount has been accepted by the D.H. without prejudice to his rights. Therefore, the decreeholder is also entitled to interest.

There is no merit in this revision. As per the decree a sum of Rs. 17500/ was to be paid by the J.D. Rs. 5000/ were supposed to be paid on 27.8.1980 and it is a common case of the parties that this amount was paid to the D.H. on that very day when the decree was passed. A sum of Rs. 4000/ was paid to the D.H. on 26.12.80 and the stipulated date of the agreement was 31.12.1980. Another sum of Rs. 2500/ was paid on 26.2.1981. This amount was also supposed to be paid by the J.D. on or before 31.12.1980. Strictly speaking there was default on the part of the J.D. when he did not pay the entire amount of Rs. 6500/ on or before 31.12.1980. Another sum of Rs. 1000/ was paid by the J.D. on 14.4.1981. During the pendency of the execution, the J.D. discharged the entire liability.

Now, it is to be seen what is the effect if the J.D. committed the default as on 31.12.1980. In order to see this we will have to switch over the decree itself because it is a settled principle of law that the executing Court cannot go beyond the decree. A reading of the decree would show that there is no clause of penalty. No right has been given to the D.H. that in the event of the default in the payment of any of the instalments, on the stipulated dates, the decreeholder will be able to execute the decree. Rather the time of payment of the instalments was not made the essence of the contract.

In this view of the matter, if the J.D. has discharged his responsibility even after 31.3.1981, he is not liable for the penal consequences, such as the execution of the decree in lumpsum or for payment of any interest etc. As I have stated above that the decree in this case has already been satisfied, therefore, the present revision stands dismissed.

Revision dismissed.