Margaret Gomes v. Kanupada Bhowmick — 1965 DIGILAW 195 (CAL)

JUDGMENT 1. THIS is an appeal from an order allowing execution of a decrse by derecting the defendant to deliver up vacant and peaceful possession of land measuring about 2 cottahs 2 chittacks and 24 sq. ft. being premises No. 28, creek Lane, Calcutta, if necessary, by removing therefrom huts and material belonging to the defendant. 2. VARIOUS defences to the order for execution have been put forward by the appellant and it is necessary to set out the facts in some detail to appreciate the points canvassed. One edward Anthony Gomes claiming to be the owner of the said land instituted a suit in this Court for evicting the defendant-appellant on September 4, 1951, alleging that the defendant was in occupation of the said land with the huts standing thereon as a monthly tenant paying rent at Rs. 20/- per month and further that the said tenancy had teen terminated by a notice to quit dated August 7, 1951. The prayers in the plaint were :- (a) vacant and peaceful possession of the land, if necessary by removing of the huts and material; and (b) mesne profits at the rate of/10/8 pies per clay until delivery of vacant possession. In the first written statement filed on November 17, 1951 by the defendant the plaintiff's ownership of the land was not denied, but it was stated that the defendant had become the owner of the huts standing on the land with right of permanent tenancy therein and as such the notice to quit was invalid. Thereafter the present decree-holder kanupada Bhowmick took a conveyance of the land from the original plaintiff and got himself substituted in the records of the suit by an order dated May 6, 1951 which also directed the amendment of the plaint and gave the defendant liberty to file an additional written statement by way of answer to the amended plaint. On June 1, 1955 the defendant filed an additional written statement. There she raised new pleas in defence without prejudice to her rights and contentions in the original written statement. On June 1, 1955 the defendant filed an additional written statement. There she raised new pleas in defence without prejudice to her rights and contentions in the original written statement. These were', inter alia : (1) That the defendant had attorned tenant and paid rent to Kanupada bhowmick at the request of the original plaintiff and Kanupada Bhowmick had agreed to treat the tenancy of the defendent as subsisting and (2) the defendant was a thika tenant within the meaning of the Thika Tenancy Amendment Act, 1953. When the suit came on for hearing in February, 1958, a decree was made by consent of parties which recorded that the parties had agreed to the terms of settlement set out in the schedule to the decree directing the defendant to deliver up to the plaintiff vacant and peaceful possession of the land. The important clauses in the terms of settlement were: - (1) that there will be a decree in terms of prayer (a) of the plaint and there will be a declaration that the plaintiff is the owner of the land in suit. . . . . and the defendant is the owner of the structures thereon. (2) The defendant will purchase from the plaintiff the land in suit for a total consideration or price of rs. 10,000/- and the plaintiff will convey and transfer the said land to the defendant absolutely and free from all encumbrances upon the receipt of the said sum of Rs. 10,000/- in cash (paid and) to be paid in the manner following:- (a) out of the said sum of rs. 10,000/- a sum cf Rs. 3,500/- has teen paid in cash to the plaintiff by way of part payment of the price settled herein before the signing of these terms. (b) a further sum of Rs. 500/- will be paid in cash in part payment of the price within four months from the date of the decree. (c) the balance sum of Rs. 6,000/-will be paid by the defendent in cash to the plaintiff within three years from the date of the decree, provided always that the defendant will be at liberty to pay the said balance sum of rs. 6,000/- by instalments of not less than Rs. (c) the balance sum of Rs. 6,000/-will be paid by the defendent in cash to the plaintiff within three years from the date of the decree, provided always that the defendant will be at liberty to pay the said balance sum of rs. 6,000/- by instalments of not less than Rs. 1,000/- at any point of time within the said period of three years and will be entitled to an abatement of interest in respect of the amount so paid, but such payment in instalments shall not be deemed to be any obligation on the part of the defendant. (d) the sums of Rs. 500/- and rs. 6,000/- or any part thereof as may remain unpaid within the respective due dates shall carry interest at 6 per cent. (e) the defendant will prepare and cause to be registered the deed of conveyance at her own cost. . . . . . . . . . the plaintiff will execute and register the same upon receipt in full of all the aforesaid sums of money with interest within the time fixed by these terms. (3) The defendant will continue in possession of the premises during the said period of three years, but will not be liable to pay to the plaintiff any rent therefor. The defendant shall however bear and pay both the occupier's and, owner's share of municipal taxes ragularly till the execution of the said deed of conveyance and the first of such payments on account of municipal taxes shall commence from the first quarter of 1958-59. (4) In default of purchase of the said land by payment of any of the aforesaid sums of money within their respective due dates and in accordance with the terms thereof or any of the terms and conditions prescribed by these terms of settlement, the plaintiff will be entitled to execute the decree for possession and to forfeit only the said sum of Rs. 3,500/- that have been paid and also the said sum of Rs. 500/-that will be paid v/ithin four months from the date of the decree. (5) The defendant will, however, have a further period of six months as a period of grace from the date of any such default whichever may be earlier for the purpose of removing her structures. 3,500/- that have been paid and also the said sum of Rs. 500/-that will be paid v/ithin four months from the date of the decree. (5) The defendant will, however, have a further period of six months as a period of grace from the date of any such default whichever may be earlier for the purpose of removing her structures. (6) The defendant will be entitled to enforce in execution of the decree the obligation of the plaintiff to transfer and convey the land in suit in her favour in accordance with the terms and conditions stated hereinbefore. It appears that the sum of rs. 300/- was duly paid by the defendant. Thereafter, however, no further steps to obtain the conveyance were taken until November 30, 1960, when the solicitors for the defendant wrote to the solicitors for the plaintiff to the effect that the defendant would pay up the entire balance of the decretal amount and would get the conveyance in her favour. By the letter the title deeds of the property were also asked for. As there was no immediate reply thereto, the defendant's solicitors wrote again to the plaintiff's solicitors to the effect that title deeds had not been sent to enable them to investigae. A reminder was also seat on December 9, 1960. On December 13, 1960, the plaintiff himself wrote to the defendant's solicitors enclosing three documents of title, namely, (1)original conveyance dated July 12, 1954 between Edward Anthony Gomes and himself, (2) original mortgage deed dated September 11, 1951, from Edward anthony Gomes to Karan Kumar mukherjee and (3) original reconveyance dated October 13, 1958, between karan Kumar Mukherjee and the plaintiff. On January 6, 1961, the defendant's solicitors wrote to the plaintiff sending a number of requisitions on title. These were no less than 22 in number with various sub-clauses under each requisition enquiring inter-alia, who was the original owner of the property and calling upon the plaintiff to trace out a good and marketable title to the land from the said original owner. The defendant further wanted to know who were the tenants of the property and whether there were any sub-tenants. The defendant further wanted to know who were the tenants of the property and whether there were any sub-tenants. On January 18, 1961, the plaintiff wrote back to say that the defendant was not entitled to send the requisiions in terms of the consent decree and that all she could ask was to have the property transferred free from encumbrances. The plaintiff also sent back the requisitions for necessary amendment. On January 24, 1961, the defendant's solicitors sent back the requisitions on title for being answered by the plaintiff. On February 14, 1961, the defendant's solicitors recorded by letter that the plaintiff had. taken inspection of the rate bills from the first quarter 1958-59 to the first quarter 1960-61. On February 16, 1961, the plaintiff complained that the defendant had not paid the municipal taxes regularly within the time prescribed by the Calcutta Municipal Act and that the municipal taxes for the second to fourth quarters of 1960-61 had remained unpaid and as such she had committed default of the terms of settlement as per Clause (3)thereof. He also put on record that in the circumstances clause (4) of the terms had become operative and the question of answering requisitions on title did not arise. On March 13, 1961, the plaintiff's solicitors wrote to the defendent's solicitors to say that by reason of the default committed by the defendant the plaintiff had become entitled to execute the decree for possession and to forfeit all sums already paid in terms of the decree. The writers further called upon the defendant to dismantle and remove the structures and to give up possession of the premises 23, Creek Lane, Calcutta, cm the expiry on the month of March, 1. 961. The same solicitors wrote again an April 4, 1961, that as there had been a failure to give up possession, mesne profits at the rate of Rs. 3 - per diem would be charged until such possession was given. On July 30, 1964, the plaintiff decree-holder filed a tabular statement for execution of the decree for possession by removal of the huts and structures belonging to the defendant. This was supported by an affidavit in which the relevant facts were stated. The defendant filed her affidavit-in-opposition on November 30, 1964. She annexed copies of the rate bills for the second, third and fourth quarters of 1960-61 to her affidavit. This was supported by an affidavit in which the relevant facts were stated. The defendant filed her affidavit-in-opposition on November 30, 1964. She annexed copies of the rate bills for the second, third and fourth quarters of 1960-61 to her affidavit. These go to show that the bills for the second and third quarters were paid on February 27, 1961, while the bill for the fourth quarter, 1960-61 was paid on June 25, 1961. 3. VARIOUS contentions were raised in the affidavit-in-opposition to show that there was no default on the part of the defendant and the decree had not become executable. We need only take into account those which were pressed at the hearing of the appeal. These were:- (1) The decree was a nullity inasmuch as the defendant was a thika tenant and no suit for her eviction lay in this Court under the provisions of the Calcutta Thika Tenancy Act. (2) if the decree was at all executable it was not this Court but the* City civil Court which had jurisdiction to execute the same under the provisions of the City Civil Court Act, (3) there was no default on the part of the defendant to comply with the terms of settlement and complete the transaction which made the decree executable. Rather the default was on the part of the plaintiff in not answering the requisition on title. (4) the terms of settlement created mutual obligations and it was not open to the plaintiff to seek to enforce the contract contained therein without discharging his obligation and (5) in any event the purported forfeiture of Rs. 4,000/- by the decree holder and his assertion that the defendant had lost the right to take a conveyance of the property was a penal provision from which she ought to be relieved. 4. SOME, if not all, of these points were raised before the learned trial judge who negatived the contentions of the appellant and made an order in terms of clause (10) of the tabular statement. These points were argued at great length before us. On the first point it was contended, that if the Court had no jurisdiction initially to pass a decree for ejectment by the operation of the Calcutta Thika Tenancy Act, the parlies by their consent could not create jurisdiction in this Court. These points were argued at great length before us. On the first point it was contended, that if the Court had no jurisdiction initially to pass a decree for ejectment by the operation of the Calcutta Thika Tenancy Act, the parlies by their consent could not create jurisdiction in this Court. A large number of authorities were cited and I do not think any useful purpose will be served by examining them all. It was certainly open to the defendant to plead in her written statement that she was a thika tenant within the meaning of Section 2 (5) of the Calcutta Thika tenancy Act, as amended in 1953, and if that point was substantiated it would be only by an application to the Controller that proceedings for ejectment could be started under Section 5 of the act. Under Section 2 (5) of the Act "thika tenant" means any person who holds whether under a written lease or otherwise, land under another person, and is or but for a special contract would be liable to pay rent, at a monthly or at any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift, any structure on such land for a residential, manufacturing or business purpose and includes the successors in interest of such person, but does not include a person- (a) who holds such land under that another person in perpetuity. I have omitted the rest of the section which is not relevant to our purpose. It is significant to note that the defendant by her written statement filed on November 17, 1951 did not raise the contention that she was a thika tenant and on the other hand claimed permanent tenancy in the land containing the huts. This averment would negative the claim for protection under the Thika Tenancy Act. She never attempted to amend the written statement by deleting her claim to permanent tenancy and in the amended written statement filed on June 1, 1955 she stated without prejudice to her rights as set forth in the original written statement that the plaintiff had agreed to treat her as a tenant after the purchase of the land from Edward anthony Gomes and had thereby waived the notice to quit. In the alternative she said that she was a thika tenant under the Calcutta Thika Tenancy Amendment Act, 1953. In the alternative she said that she was a thika tenant under the Calcutta Thika Tenancy Amendment Act, 1953. It will therefore be noticed that her claim to permanent tenancy was never given up and this is wholly inconsistent with her being. thika tenant entitled to protection under the Calcutta Thika tenancy Amendment Act. In any event the incidents of her tenancy were questions of fact which she could have pressed at the trial. For reasons best known to her she did not persist in her claim that she was a thika tenant or that she had a permanent tenancy in the land and she submitted to the decree as if she was not a thika tenant and had no right of permanent tenancy. In my opinion, by such conduct she is estopped from contending in execution proceedings that she was a thika tenant and that the Court had no jurisdiction to pass a decree for ejectment even on consent. The judgment by consent created an estoppel by record. According to Halsbury's Laws of england, third edition, Volume 15, article 349 page 178 "a judgment which would be final if it resulted from judicial decision after a contest is not prevented from being so by the fact that it was obtained by consent or default or as the result of admissions, provided the party against whom it is set up was under no disability; but the efficiency of a judgment so obtained is strictly limited. " 5. COUNSEL for the appellant drew our attenton to article 384 at page 204 of the same volume reading "in order that estoppel by record may arise out of a judgment the Court which pronounced the judgment must have had jurisdiction to do so. The lack of juristion deprives the judgment of any effect, whether by estoppel or otherwise. " This statement of the law only applies to a situation when it is shown that there was inherent lack of jurisdiction in the Court which passed the judgment as for instance where according within the jurisdiction of the court where it was filled filed. The same learned author goes on to add in article 389 page 208 that "where, however, the former judgment was a judgment by default, and the plaintiff has delivered no pleading, the estoppel is limited to what appears on the face of the judgment itself. The same learned author goes on to add in article 389 page 208 that "where, however, the former judgment was a judgment by default, and the plaintiff has delivered no pleading, the estoppel is limited to what appears on the face of the judgment itself. On the same principle a defendant who has consented to judgment before delivery of any pleading is not estopped as against the plaintiff from subsequently setting up matters which might have constituted a defence, because they have never been in issue; but it is otherwise with a defendant who has consented to judgment after pleading in his defence the matters which he seeks to set up in the later proceeding" 6. IT will, therefore, be noticed that the defendant would come within the mischief of the last part of the above statement of law. (1) In re south American and Mexican Company exparte Bank of England, (1895) 1 chancery 37 it was argued that "a judgment by consent, upon which the court has not exercised its mind, does not and cannot raise an estoppel interparties. " Refuting this Vaughan williams, J. said "i can only say this is the first time I have ever heard such a proposition suggested. It has always been the law that a judgment by consent or by default raises an estoppel just in the same way as a judgment after the Court has exercised a judicial discretion in the matter. The basis of the estoppel is that, when the parties have once litigated a matter, it is in the interest of the estate that litigation should come to an end, and if they agree upon a result, or upon a verdict, or upon a judgment, or upon a verdict and judgment, as the case may be, an estoppel is raised as to all the matters in respect of which an estoppel would have been raised by judgment if the case had been fought out to the bitter end. " This was upheld by the Court of Appeal where Lord Herschell L. C. observed "The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as a judgment which results from the decision of the Court after the matter has been fought out to the end. " This was upheld by the Court of Appeal where Lord Herschell L. C. observed "The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as a judgment which results from the decision of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgment, and were to allow questions that were really involved n the action to be fought over again in a subsequent action. " Reference may also be made to the case of the judicial committee of the (2) River Ribble v. The Croston urban District Council. (1897) 1 Q. B. D. 251. In this case proceedings having 'been taken in a county Court under the rivers Pollution Prevention Act, 1876 against the defendants for permitting sewage to flow into a certain river and neglecting to use the best practicable means to render the sewage harmless the defendents thereto consented to an order declaring them to have committed the alleged offence and submitted to an order to execute the necessary sewage works to,prevent its continuance. At the date of that order the defendants were under the belief that the part of the river into which the sewage flowed was non-tidal. Subsequently, the defendants when summoned for penalties for disobedience to that order sought to show that the part of the river into which sewage flowed was tidal water and that as there had been no order of the local Government Board declaring it to be a stream within the meaning of the section 20 of the Act they had committed no offence. It was held by Wille, J. that the order of the county Court was equivalent to a. judgment, and that the defendants were estopped from disputing that they had committed the alleged offence "and it would be contrary to all principle to allow the defendants now to urge reasons for not obeying it which might have been set up at the time when the order was consented to. " 7. COUNSEL for the appellant sought to rely on the case of (3)Griffiths v. Davies, (1943) 1 K. B. 618. This was an appeal from the judgment of the county Court. " 7. COUNSEL for the appellant sought to rely on the case of (3)Griffiths v. Davies, (1943) 1 K. B. 618. This was an appeal from the judgment of the county Court. The facts were as follows: A dwelling house had been let from 1915 to 1919 at a rent of. 11 a year. From 1919 the tenant Mrs. Griffiths occupied the dwelling house at a yearly rent of 26. In 1933 the rent being in arrear, the landlord Mrs. Davies brought an action against the tenant in the county Court claiming poeseesion and arrears of rent. In that action the point was not taken by the tenant that the rent of 26 was in excess of the standard of permitted rent, and judgment was given for poeseesion but was suspended so long as the current rent together with 2s. 6d. a month off the arrears, was paid. The tenant duly paid the rent and inatalments under the judgment until 1942 when she applied to the county Court under section 11 (1) of the Rent arid mortgage Interest Restrictions Act, 1923 to fix the standard rent and the current lawful rent of the dwelling house. The landlord objected that the tenant was estopped from maintaining her application by the judgment in the poeseesion action in which she could have raised the question of the standard rent, but did not do so, and he county Court judge refused to entertain her application. The tenant went in appeal to the king's Bench Division. Delivering judgment Lord Greens, M. R. said "it appears to be beyond all question that, if, in proceedings where the point is not taken, judgment for an amount of conventional rent which is excessive is given against a tenant, and later, an action is brought against the tenant for the conventional rent at the same rate, in which later in proceedings it is shown that that rent is excessive, the earllier judgment cannot give to the Court a jurisdiction which section 1 of the Act of 1920 has denied to it. " It is to be noted, that section 1 referred to above provided that "subject to the provisions of this Act, where the rent of any dwelling house to which this Act applies. . . . . . . . has been, since March 25, 1920, or hereafter, increased, then, if the increased rent. . . . . " It is to be noted, that section 1 referred to above provided that "subject to the provisions of this Act, where the rent of any dwelling house to which this Act applies. . . . . . . . has been, since March 25, 1920, or hereafter, increased, then, if the increased rent. . . . . . . . exceeds by more then the amount permitted under this Act the standard rent. . . . . . the amount of such excess shall, notwithstanding any agreement to the contray, be irrecoverable from the tenant". Section 11 of the Act laid down "the county Court shall have power on the application of a landlord or a tenant to determine summarily any questions as to the amount of the rent, standard rent or net rent of any dwelling house to which the principal act applies, or as to the increase of rent permitted under that Act or this part of this Act. It is in these circumstances that Lord Greene, M. R. said, "notwithstanding the judgment in 1933, it is equally competent to the tenant to make an application under "s. 11 of the Act of 1923 to determine the lawful rent or to resist a claim for rent under s. 1 of the Act of 1920. " Earlier his Lordship had said "is it to be said that because in previous proceedings the point about excess rent was not taken, the tenant is for ever thereafter, precluded from invoking that ancillary machinery, the whole object of which is to enable the question propounded by s. 1 of the Act of 1920-namely, Is the rent excessive ?-to be answered". In my opinion, this decision does not help the appellant. In Griffiths' case the tenant failed to avail herself of the statutory right to have the standard rent fixed in the earlier proceedings brut this obviously did not result in her losing the said be estopped because she right for all time to come and it was held that the tenant could not be estopped because she had not avrailed herself of the provision. Before us the facts are dfferent. Before us the facts are dfferent. The tenant while pleading that she was a thika tenant also claimed further rights of permanent tenancy which would take away the protection of the Thika tenancy Act so that if her statement was taken at its face value she had no defence under the Calcutta Thika tenancy Act. 8. I do not think it necessary to go into the larger question as to whether the executing Court can go behind the decree. If a point as to jurisdiction is taken which can only be decided on evidence and judgment is allowed to be given by consent it means that the defendant was not in a, position to substantiate that defence and the result must be the came as if the issue had been raised and decided against the defendant. Having abandoned that point and consented to a decree the defendant must be precluded from. raising the same point at a subsequent stage of the suit or in execution proceedings. In such circumstances the plea of res judicata as laid down in (4)Hook v. Administrator General of bengal and Ors. 48 I. A. 187 ought to apply. Reference may also be made to the judgment in (5) Jnan Chand Chugh v. Jugal Kishore Agarwal and Ors. A. I. R. 1960 Cal. 331 at page 340. It was next argued that this court lost the jurisdiction to execute the decree by the operation of the calcutta City Civil and Sessions Court act, 1953. It was said that by virtue of section 5 (2) of the said Act it was the city Civil Court which acquired jursdiction to try suits and proceedings of a civil nature not exceeding rupees ten thousand in value. It was further argued that an execution application is a fresh proceeding and in 1964 when the same was presented to this Court the jurisdiction to entertain the same had become vested in the City Civil court. It was further argued that an execution application is a fresh proceeding and in 1964 when the same was presented to this Court the jurisdiction to entertain the same had become vested in the City Civil court. Reference was made to the judgment of the Bombay High Court in (6) Vishwanath Keshav Joshi v. B. M. Sukhadwala, A. I. R. 1949 Bombay p. 250 where it was held that the word 'proceeding' in section 18 of the Bombay City Civil Court Act (XL of 1948)includes execution proceedings and as a result of the passing of the said Act the Bombay High Court had no jurisdiction to entertain an application for execution of a decree passed by it for an amount exceeding Rs. 2000/- but not exceeding Rs. 10,000|- when the Act came into force. The scope of the bombay Act (XL of 1948) is entirely different from that of the Calcutta City civil Court Act. Under section 18 (1)of the Bombay Act "all suits and proceedings cognizable by the City Civil court and pending in the High Court, in which issues have not been settled or evidence has not been recorded on or before the date of the coming into force of this Act, shall be transferred to the City Civil Court and shall be heard and disposed of or by the City court and the City Court shall have all the powers and jurisdiction thereof as if they had been originally instituted in that Court. " By section 12 of the said Act, "notwithstanding anything contained in any law, the High Court shall not have jurisdiction to try suits and proceedings cognizable by the City court: provided that the High Court may, for any special reason, and at any stage remove for trial by itself any suit or proceeding from the City Court. " 9. THESE two sections make it quite clear that within the pecuniary or territorial limits of the jurisdiction of the City Court of Bombay the power to try suits and proceedings vested, in that Court alone to the exclusion of the High Court subject to the proviso to section 12 and subject to the subordination and superintendence of the high Court under section 5 of the Act which is not relevant for our purpose. The position under the West Bengal act is, however, different. The position under the West Bengal act is, however, different. There is no provision for transfer of pending suits and proceedings from the Calcutta high Court to the City Civil Court as in Bombay. On the other hand, section 20 of the Calcutta City Civil court Act expressly provides for the continuance of all suits and proceedings instituted in the High Court before the coming into force of the city Court Act as if that Act had not been passed. Consequently, if the proceeding in execution be a continuation of the suit earlier instituted and decreed in this Court an application for execution also would have to be made here. In (7) Dokku Bhushayya v. Gadda Ramkrishnayya and ors., A. I. R, 1962 S. C. 1886 the question before the Supreme Court was one of construction of the provisions of Order xxxii, Rule 7 which provides that "no next friend or guardian for the suit shall, without the leave of the court, expressly recorded in the proceedings enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian" and "any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor. " In the supreme Court case a decree had been passed against the sons of one Dokku on the basis of a promissory note executed by the father. One of the sons a minor was represented by his maternal grandfather as his guardian. In execucution of the decree properties of dokku were brought to sale and purcased by the decree-holder's clerk subject to the mortgage in favour of the decree-holder. Before the sale was confirmud, the appellant minor reprecnled by hid maternal grandfather filed a petition to set aside the sale under order XXI, Rule 90 of the Code of civil Procedure. On the day when the matter appeared in the list a memorandum was filed in Court by the guardian to the effect that the matter had been adjusted and the petition should be dismissed as having been withdrawn. No sanction of the Court was obtained by the guardian for withdrawing the petition. The Court passed an order dismissing the application. Consequently the sale was confirmed. No sanction of the Court was obtained by the guardian for withdrawing the petition. The Court passed an order dismissing the application. Consequently the sale was confirmed. Thereafter the appellant on attaining majority filed a suit for setting aside the order of dismissal of the petition. Before the Supreme court one of the points taken was that by reason of section 141 of the Code, the procedure provided under Order xxxii, Rule 7 should be extended to an agreement or a compromise entered into by a guardian in respect of an application to set aside a sale under order XXI, Rule 90 of the Code. In other words, the argument was that an application under Order XXI, Rule 90 was an independent proceeding, and as the agreement for withdrawing the said proceeding affected the right created by the sale, it fell within the meaning of the said Rule. This was negatived and the Supreme Court held that the application by the judgment-debtor to set aside the sale was a proceeding in execution and therefore section 141 of the Code would not apply for two reasons, namely, (1)execution proceedings were continuation of the suit within the meaning of order XXXII, Rule 7 of the Code and as the Code provided specifically for suits, section 141 could not be invoked; (2) an application by a judgment-debtor to set aside a sale was a proceeding in execution and therefore section 141 which applied only to original proceedings, did not apply to such proceedings. 10. APART from the question as to whether execution proceedings are in continuation of a suit or not tit appears that by the amendment of the west Bengal Premises Tenancy Act, 1956 in the year 1957 by West Bengal act XXVII of 1957 this Court became the only Court competent to entertain the proceedings. Section 20 of the said act provided-"notwithstanding anything contained in any other lav. a suit or proceeding by a landlord against a tenant in which recovery of possession of any premises to which this Act applies is claimed shall lie to the Courts, as set out in the Schedule, and no other Court shall be competent to entertain or try such suit or proceeding. "The relevant portion of the schedule to the Act provided as fallows:- "1. "The relevant portion of the schedule to the Act provided as fallows:- "1. (i) Where the value of the suit or the value of the premises of which recovery of possession is claimed does not exceed ten thousand rupees to the City Civil Court as defined in the city Civil Court Act, 1953; (ii) Where the value of the suit exceeds ten thousand rupees to the high Court at Calcutta." In this case the parties fixed the value of the land measuring a little over two cottahs at Rs. 10,000/- in the year 1958 and it is common knowledge that there has been an enormous rise in land values in Calcutta in between 1958 and 1964 when the application for execution was presented to this Court. Whatever be the increase the value: of the premises of which recovery of possession was sought in 1964 must be held to have exceeded Rs. 10,000/- when execution proceedings were launched and as such they could only be instituted in this Court. In this view of the matter it is hardly necessary to examine the question whether proceedings in execution of a decree passed by this Court in 1958 could be instituted in this court under section 38 of the Code of civil Procedure as if section 20 of the west Bengal Premises Tenancy Act, 1956 had not been amended and jurisdiction to execute decreses in respect of property the value whereof did not exceed Rs. 10,000/- lay in the City civil Court alone. 11. THE third objection as to the executability of the decree on the ground that there was no default on the part of the defendant to comply with the terms of settlement and complete the transaction which rendered the decree executable, is without any substance. Broadly speaking, the effect of the terms of settlement was as follows: 12. THE defendant was declared to be the owner of the structures and the plaintiff the owner of the land. The defendant entered into a bargain to buy the land free from encumbrances at and for Rs. 10,000/- of which rs. 3,500/- was paid immediately. A further sum of Rs. 500/- was to be paid within four months from the date of the decree. The defendant had three years within which to pay the balance of the sum of Rs. 6,000/ -. The sums of rs. 500/- and Rs. 10,000/- of which rs. 3,500/- was paid immediately. A further sum of Rs. 500/- was to be paid within four months from the date of the decree. The defendant had three years within which to pay the balance of the sum of Rs. 6,000/ -. The sums of rs. 500/- and Rs. 6000/- were to carry ''interest at the rate of 6 per cent until payment. The defendant had the right to remain in possession for three years without payment of any rent or mesne profits. She was obliged however to pay the occupier's and owner's share of the municipal taxes regularly until the execution of the conveyance. In default of her paying (1) Rs. 500/-within four months or (2) Rs. 6000/-within three years or (3) in default of her paying the municipal taxes regularly the plaintiff was to be entitled to execute the decree for possession. On such default he was also to have the right to forfeit the two sums of rs. 3,500/- and Rs. 500/- but not any portion of Rs. 6000/- which could have been paid in instalments inside three years at the option of the defendant. The obligation to pay the municipal taxes regularly must mean that the defendant had to pay the said taxes as and when they fell due under the Calcutta Municipal Act. Under section 191 of the said Act the two moities of the taxes are to be paid in quarterly instalments and the quarters are to be taken to commence on the first day of April, first day of July, first day of October and the first day of January. Further, instalments are payable on or before the 15th day of may, 15th day of August, 15th day of november and 15th day of February respectively for such quarters. Under section 235 it is the duty of the Commissioner to cause to be presented to the person liable a bill for the consolidated rate stating the period for which it is due and the premises in respect of which the rate is charged. Under section 236 if the amount for which any bill has been presented under section 235 has not been paid within 15 days from such presentation into the municipal office the Commissioner may cause to be served upon the person liable a notice of demand in the form prescribed. Under section 236 if the amount for which any bill has been presented under section 235 has not been paid within 15 days from such presentation into the municipal office the Commissioner may cause to be served upon the person liable a notice of demand in the form prescribed. Further under this section on the amount of a bill remaining unpaid after 15 days after presentation of the bill, nterest is payable at the fixedrate from the commencement of the quarter following that for which the bill is presented. Under section 237 if the person liable for the payment of the consolidated rate does not, within 15 days from the service of a notice of demand under section 235, pay the sum due, such sum, with interest thereon and all costs of recovery, may be recovered under a warrant in the form prescribed by distress and sale of any movable property belonging to such person, if such person be the occupier o3 any premises in respect of which the sum is due, by distress and sale of any movable property found on the said premises. Under section 245 the Commissioner may also recover from the defaulter any sum due by certificate under the Bengal Public Demands recovery Act. Needless to add that the rate also may be recovered by means of a suit such rate being a first charge upon the land or building and upon the movable property found upon such land or building subject to the dues if any, to the Government thereupon. The bills for the second quarter 1960-61 for the period July to September, 1960 show that they were paid on february 27, 1981 with interest. Similarly bills for the third quarter 1960-61 for the period October to December 1960 dated October 1, 1960 show that payment was received on the same day namely February 27, 1961 with interest. Clearly they had not been paid in time under the Calcutta Municipal ac;, and there was a default - in the payment of these instalments within the meaning of the terms of settlement. Clearly they had not been paid in time under the Calcutta Municipal ac;, and there was a default - in the payment of these instalments within the meaning of the terms of settlement. On November 30, 1960 when the solicitor for the defendant first wrote to the solicitors for the plaintiff intimating the latter that the defendant wanted to pay up the entire balance of the decretal amount and take a conveyance in her favour, whatever might have been her motive, it is clear that the defendant wanted the plaintiff to make out a good and marketable title to the property before she would think of paying Rs. 8000/- i. e., the balance of the consideration money. In my opinion, the defendant was mot entitled to send the requisitions on title which she had done through her solicitors in this case and by insisting on the plaintiff answering such requisitions before she would take a conveyance she clearly evinced her intention not to abide by the terms of settlement. By the said terms the plaintiff's ownership of the land having been agreed upon all that the defendant could insist on was to see that there were no encumbrances on the property at the time, she took the conveyance and paid the balance of the consideration. By her own conduct she made it impossible for the plaintiff to carry out his obligation under the terms. 13. LEARNED counsel for the defendant argued that by covenanting to pay rates and taxes regularly all that the defendant had promised to do was to pay the same in the way she had been doing in the past and that her only obligation was to produce the receipts granted by the Corporation of Calcutta for the rates and taxes up to the date when she took the conveyance and that it did not matter that the rates and taxes had. not been paid up regularly in terms of the Calcutta Municipal Act in the meanwhile. In my view, this is not the bargain which the parties had entered into by the terms of settlement. There is no ambiguity in the terms with regard to the manner and mode of payment and I cannot accept the suggestion that the defendant's obligation was to pay in the manner she had been doing in the past. In my view, this is not the bargain which the parties had entered into by the terms of settlement. There is no ambiguity in the terms with regard to the manner and mode of payment and I cannot accept the suggestion that the defendant's obligation was to pay in the manner she had been doing in the past. By the operation of clause (4)of the terms of settlement the plaintiff became entitled to execute the decree for possession because of the defaults of the defendant. The fourth point that there was a failure on the part of the plaintiff to carry out his obligation under the terms of settlement which prevented him from putting the decree in execution is without any merits. Reference was made by counsel for the appellant to the case of (8) Jai Narain Ram sundia v. Kedar Nath Khetan and Ors. (1956) S. C. A. 370. In that case it was laid down that when a decree imposed obligations on both sides which were so conditioned that performance by one was conditional on performance by the other execution would not be granted unless the party seeking the same not only offered to perform his part, but when objection was raised, satisfied the executing Court that he was in a position to do so. This case has no application to the facts before us. It was for the defendant to show that she was not in default when she called upon the plaintiff to perform his part of the bargain. The only obligation of the plaintiff was to satisfy the defendant at the time of the execution of the conveyanee that encumbrances on the property, if any, had been discharged. But the matter never reached the stage when the plaintiff was called upon to prove performance of the obligation cast upon him by the terms of settlement. 14. THE last point taken was that the terms of settlement between the parties contained penal clauses which could not be enforced. It was said that according to the terms the defendant stood. to lose the sum of Rs. 4000/-already paid by her even if there was a single default in the matter of payment of the municipal rates and taxes in a particular quarter which amounted only to Rs. It was said that according to the terms the defendant stood. to lose the sum of Rs. 4000/-already paid by her even if there was a single default in the matter of payment of the municipal rates and taxes in a particular quarter which amounted only to Rs. 28/- It was also argued that the loss of the right to take a conveyance of the property after having paid Rs. 4000/- because of delay in the payment of Rs. 28/- in a quarter was penal in nature and execution of the decree by putting the plaintiff in possession or allowing him to forfeit the sum of Rs. 4000/- already paid would be enforeing a penal clause. Our attention was drawn to section 74 of the Indian Contract Act and the decision of the Supreme Court in (9) Fateh chand v. Balkishan Dass, (1964) 1 s. C. A. 174 where it was observed that section 74 of the Indian Contract Act was clearly "an attempt to eliminate the somewhat elaborate refinements made under the English Common Law in distinguishing between stipulations providing for payment of liquidated damages and stipulations in the nature of penalty. " There the plaintiff had contracted to sell his rights in a certain plot of land and building to the defendant appellant for Rs. 1,12,500/- of which rs. 1000/- was paid by way of earnest at the time of the execution of the agreement which provided that the plaintiff would deliver vacant possession of the bungalow to the defendant on march 30, 1949 on receiving a further sum of Rs. 24,000/- and that the defendant would have to get the sale deed registered by June 1, 1949. The agreement further provided that "if, on account of any reason, the vendee fails to get the said sale deed registered by June 1, 1949, then this sum of rs. 25,000/- shall be deemed to be forfeited and the agreement cancelled. Moreover, the vendee shall have to deliver back complete vacant possession of the bungalow to the executant. If due to certain reason, any delay takes place in the registration of the sale deed, then the executant shall be liable to pay a further sum of rs. 25,000/- as damages, apart from the aforesaid sum of Rs. 25,000/- to the vendee and the bargain shall be deemed to be cancelled. If due to certain reason, any delay takes place in the registration of the sale deed, then the executant shall be liable to pay a further sum of rs. 25,000/- as damages, apart from the aforesaid sum of Rs. 25,000/- to the vendee and the bargain shall be deemed to be cancelled. " In these circumstances the Supreme Court held that the sum of Rs. 24,000/- was not to be regarded as earnest money and the claim to forfeit the said sum had to be adjudged in the light of section 74 of the Indian Contract Act. The Court found that there was no evidence that any loss was suffered by the plaintiff in consequence of the default by the defendant, save as to the loss suffered by him by being kept out of possession of the property. There was no evidence that the property had depreciated in value since the date of the contract nor was there cvidence that any other special damage had resulted. In these circumstances, the court concluded that the clause allowing forfeiture of rs. 24,000/- was-penal in nature and the plaintiff was entitled to compensation at the rate of Rs. 140/- per mensem from June 1, 1949 till the date of delivery of vacant possession together with interest at six per cent. The above decision cannot help the appellant before us as the facts in the present case are entirely different. The terms of settlement here show that with the passing of the decree the relationship of landlord and tenant came to an end. If one were "to strip off the legal trappings in which the settlement was dresssed and see it in its native simplicity" one would notice that thereafter (1) the parties agreed to become a vendor and a purchaser of the land concerned, (2) that Rs. 10,000/-was fixed as the total price payable, (3)the purchaser was to be allowed to remain in possession for three years in consideration of Rs. 3,500/- paid at the time of the passing of the decree besides the sum of Rs. 500/- payable within four months thereafter, (4) the sum of Rs. 4000/- was to be taken in part-payment of the purchase price if the transaction went through and (5)the purchaser was to lose the sum of rs. 4000/- if she did not complete the purchase within three years. 15. 500/- payable within four months thereafter, (4) the sum of Rs. 4000/- was to be taken in part-payment of the purchase price if the transaction went through and (5)the purchaser was to lose the sum of rs. 4000/- if she did not complete the purchase within three years. 15. IN these circumstances, it is not unreasonable to hold that Rs. 400/-was the amount fixed for the use of the land for three years and, as such, a pre-estimate of damages fixed by the parties in case the transaction of sale and puschase did not go through. This sum is certainly far in excess of the rent which would have been payable at the old rate of Rs. 20/- per month for three years. It would not however be an unreasonable figure at the prevalent letting value of the land in 1958. Rs. 4000/- spread over 36 months works out to Rs. 111/- per month. This means that the defendant was agreeing to pay about Rs. 55 - per cottah per month for the three years she was to occupy the land without paying any rent. The landlord's share of the rates and taxes came only to Rs. 14/- per quarter or approximately Rs. 5/- per month which is negligible. It is common knowledge that the letting value of open land in Calcutta has for some years past been so high that Rs. 60/-per month per cottah would not be considered an unreasonable rate at all in most parts of the City. In this connection it may also be noted that the right to forfeit amounts paid by the defendant was limited to Rs. 4000/-only and if the defendant paid any portion of the balance of Rs. 6000/- the plaintiff did not by the terms of settlement have any right to forfeit the same. 16. MANY tests have from time to time been suggested by learned Judges to find out whether the forfeiture of a certain sum of money would be treated as operating in effect as a penal clause. I can do no better than quote from Anson on Contracts Twenty-first edition, page 477 where the learned author summarises the rules culled from the speech of Lord Dunedin in (10) Dunlop Pneumatic Tyre Co. Ltd. v. New Garage and Motor Co. I can do no better than quote from Anson on Contracts Twenty-first edition, page 477 where the learned author summarises the rules culled from the speech of Lord Dunedin in (10) Dunlop Pneumatic Tyre Co. Ltd. v. New Garage and Motor Co. Ltd. 1915 a. C. 79 as following:- (i) It will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that, could conveivably be proved to have followed from the breach. (ii) It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid. (iii) There is a presumption (but no more) that it is a penalty when a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage. On the other hand. (iv) It is no obstacle to the sum stipulated being a genuine pre-estimate of damage, that the consequences of the breach are such as to make precise pre-estimation almost an impossibility. In my view the first three tests are inapplicable here. If for instance after being in occupation for three years the defendant was unable or unwillig to complete the transaction it would certainly not be consonant to justice or equity to hold that she would have the use of the land for three years on payment of Rs. 28/- per quarter. The old rate of rent at rs. 20/- per month was wholly inadequate if the land was to be let out in 1958. The letting value of the land having gone up inordinately all over calcutta the parties could reasonably be taken to have made a genuine prestimate of damage which the plaintiff would have suffered if the defendant after remaining in possession for three years did not choose to pay the balance of Rs. 6000/- and complete the transaction or even If the transaction fell through for some other reason. 17. 6000/- and complete the transaction or even If the transaction fell through for some other reason. 17. ONE of the cases cited at the bar namely (11) In re: Dagenham (Thames) Dock company Exparte Hulse, Law Reports 8 Chancery Appeals page 1022 affords an instance of a forfeiture clause in an agreement between a vendor and a purchaser to be treated as a penalty. There an agreement was entered into between (a) a tenant for life of a settled estate, (b) trustees with a power to sell and (c) the dagenham (Thames) Dock Company incorporated by statute for the purpose of making a dock on the north side of the Thames, to the effect that the said trustees should sell and the company should purchase, the lands therein described for 4000 of which 2000 was to be paid on the execution of the agreement, whereupon the company was to be let into possession, and the remaining 2000 with interest from the date of the agreement, was to be paid on November 1, the next, when the purchase was to be completed. This agreement contained a clause providing that in case the second sum of 2000 and all interest thereon should not be entirely paid off and discharged by August 7, 1867, in which respect time should be of the essence of the contract, it should be lawful for the trustets to re-enter upon the lands and re-possess and enjoy them as in their former estate, and to eject the company, without any obligation on the part of the trustees to repay to the company any part of 4000 which might have been previously paid, or any interest thereon which should be absolutely forfeited to the vendors. The first 2000 was paid on the execution of the agreement on August 14, 1965 and the company was let into possession. By a further agreement in 1867 the time for repayment of the remaining 2000 was extended until august 1, 1868. The first 2000 was paid on the execution of the agreement on August 14, 1965 and the company was let into possession. By a further agreement in 1867 the time for repayment of the remaining 2000 was extended until august 1, 1868. There was a further extension till November 1, 1869 when it also agreed that if the undertaking should be abandoned, or in case 2000, with all interest from, the date of the agreement of August 14, 1865, to the date of payment, should not be entirely paid off and discharged by november 1, 1869, in all of which respect time wag to be of the essence of the contract, it should he lawful for the trustees, notwithstanding that the conveyance might have been executed, and notwithstanding any intermediate negotiations or correspondence, to enter into and upon and take possession of the lands and all works and to eject the company therefrom, without any obligation to repay to the company 2000 already paid or any part of the balance of 4000 still remaining due. Money was not paid. On August 7, 1869 a petition was presented to wind up the company and on December 11, 1869 an order for winding up was made. On May 25, 1870, the trustees commenced an action of ejectment and on February 20. 1871 an order was made by consent in the winding up that the plaintiffs should be at liberty to sign judgment, they undertaking not to issue execution until further order, and to abide by any order the court might make as to the property affected by the judgment, On March 26, 1873 the appellants applied for an order that they might be at liberty to issue execution, and that yhe liquidator and the company might deliver up to the applicants possession of the lands free from all claims by the company. The master of the Rollis offered to the applicants an order for sale and payment, as in the ordinary case of vendor's lien. This offer being declined, his lordship refused to make any order. In the appeal James, L. J. observed "In my opinion, this is an extremely clear case of a mere penalty for nonpayment of the purchase money. The master of the Rollis offered to the applicants an order for sale and payment, as in the ordinary case of vendor's lien. This offer being declined, his lordship refused to make any order. In the appeal James, L. J. observed "In my opinion, this is an extremely clear case of a mere penalty for nonpayment of the purchase money. * * * it would be a strong thing to hold that a company authorised to buy land for purposes benefieial to the public could enter into a bargain with a landowner that if ever so small a portion of the purchase money which the company is to pay him remains unpaid on a particular day. he shall be entitled to take back the land with all the works which had been executed upon it by the company. * * * I agree with the Master of the Rolls that this is a penalty from which the company are entitled to be relieved on payment of the residue of the purchase money with interest. " Mellish, L. J. said "i have always understood that where there is a. stipulation that if, on a certain day, an agreement remains either wholly or in any part unperformed-in which case the real damage may be either very large or very trifling-there is to be a certain forfeiture incurred, that stipulation is to be treated as in the nature of a penalty," 18. THE facts in Dagcnham's case do not bear any resemblance to the facts before us. If the period within which the transaction had io be completed was three months instead of three years and the appellant stood to lose Rs. 4,000/- for non-completion of the transaction for any reason within that space of time there would be little difficulty in holding that the clause for forfeiting the amount was penal in nature from which the appellant ought to be relieved. As we have not been able to accept any of the contentions raised on behalf of the appellant the appeal must be dismissed with costs. Certified for two counsel. The interim orders are vacated. The cross appeal was not pressed and there will be no order on it.