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1946 DIGILAW 186 (ALL)

Popular Bank of India v. Cheranji Lal

1946-08-01

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ORDER Wali Ullah, J. - This is an application in revision under S. 25, Small Cause Courts Act, filed by the judgment-debtor against the order rejecting the objection filed by him. It appears that the opposite party Pt. Chiaranji Lal Misra, put for ward a claim of Rs. 692-13-0. Eventually the case ended in a compromise and on 3-8-1943 a joint application containing the terms of the compromise was filed and the suit was decreed in terms of the compromise. Thereafter the decree-holder applied for execution of the decree. Objections were filed on behalf of the judgment-debtor that part of the amount sought to be realised from him by means of the execution of the decree could not be realised inasmuch as the stipulation in the deed of compromise allowing an increased amount on default in making the payment within the period of time specified amounted to a penalty and the Court should grant relief against the penal provisions in the deed of compromise. The terms of the compromise in substance were that the entire claim was to be decreed but that if Rs. 200 were realised by the encashment of the cheque passed by the judgment-debtor to the decree-holder on the date of the compromise and if Rs. 375 plus half the costs of the suit were paid by the judgment-debtor to the decree-holder by 18th August 1943, the decree-holder would be prepared to forgo the balance of the decree. As explained in the last sentence of the compromise. the decree-holder would aceept Rs. 375, plus costs as in an ex parte decree in lieu of his whole claim if this amount is paid by 18th August 1943. The whole question therefore which the Court below had to decide and which has been argued before me is whether, in view of the terms of this compromise, it can be said that the claim for recovery of an amount larger than that made up of Rs. 200, plus Rs. 375, plus half costs was by way of a penalty. Considering the terms of the compromise it seems to me perfectly obvious that there was no question of a penal stipulation in the deed of compromise. 200, plus Rs. 375, plus half costs was by way of a penalty. Considering the terms of the compromise it seems to me perfectly obvious that there was no question of a penal stipulation in the deed of compromise. It seems to me that by reason of the compromise the decree-holder was agreeable to make certain concessions in favour of the judgment-debtor in case the judgment-debtor wag prompt in mailing the payment of the smaller amount mentioned in the deed of compromise. 2. Learned counsel for the opposite party has cited the case in B. Kishen Prasad and Another Vs. Kunj Behari Lal Kishan Prasad v. Kunj Bihari Lal. The facts of that case were similar to those of the present case. A Bench of two learned Judges of this Court held in that case that the provision regarding the payment of the larger amount in case of default in payment of the smaller amount within the specified time was not by way of penalty. A number of other cases decided by other High Courts in India have been cited before me but, in view of the decision of a Bench of two learned Judges of this Court, it is not at all necessary to refer to any of them. 3. I am satisfied that the order of the Court below dismissing the objections preferred by the judgment-debtor in this case was fully justified. I accordingly dismiss this application in revision with costs.