S. B. MAJMUDAR, J. ( 1 ) ). This second appeal arises out of execution proceedings. The appellant original judgment debtor had applied to the executing court i. e. court of the learned Civil Judge Junior Division Ankleshwar for certification of various payments which were allegedly made by him according to the terms of the consent decree passed between the present appellant judgment debtor and the respondent original plaintiff decree holder in Regular Civil Suit No. 148/65 of that court and for a further certification that the decree to that extent had stood satisfied. That said application of the appellant judgment debtor was under the provisions of Order 21 Rule 2 (2) C. P. C. The said application came to be granted by the executing court but the appeal of the original decree holder respondent before the District Court succeeded and the appellants application was ordered to be dismissed. That has brought the judgment debtor to this court by way of the present appeal under sec. 47 of the C P. C. ( 2 ) A few relevant facts may now be noted. The respondent original decree holder was a displaced person from West Pakistan. He was allotted certain agricultural lands in the sim of village Sarthan in Ankleswar Taluka of Bharuch District as a displaced person under the provisions of Displaced Persons (Compensation and Rehabilitation) Act 1954 The present appellant claimed to be the tenant of these agricultural fields from times of the original evacuee who was the prior owner of these lands. In order to evict the appellant original judgment debtor original decree holder the present respondent filed Regular Civil Suit No. 148 of 1965 in the court of the learned Civil Judge Junior Division Ankleswar praying for possession of the suit fields from the appellant judgment debtor on the ground of his title as an allottee of these lands. Ultimately the said suit was settled between the parties and a consent decree was passed on 29 November 1965 The terms of the said consent decree have given rise to the present dispute between the parties and hence it is necessary to reproduce these terms in extenso as under:order parties Pleader for plaintiff with power and defendant admit compromise when read over to them Recorded Decree be drawn in terms the compromise. 1/2 court fee to the refunded to plaintiff. Sd/- C. G Rathod. 1/2 court fee to the refunded to plaintiff. Sd/- C. G Rathod. 29-11-65 the aforesaid consent terms thus clearly provide for a decree for possession of the suit lands in favour of the respondent and against the appellants but also offered a concession to the appellant judgment debtor to the effect that if he paid Rs. 14 862 with interest at the rate of 4% per year from 1-4-66 onwards he was given an opportunity to purchase these suit lands and in that eventuality the original decree holder had to execute and get registered a sale deed in favour of the appellant judgment debtor. The mode of payment of this amount was also prescribed. Rs. 1200 were accepted to have been paid on the date of the consent terms on 29-11-66. The rest of the amount was ordered to be paid by instalments by the judgment debtor appellant to the respondent. Rs. 800. 00 were ordered to be paid on 20-12-65. Rs. 862-50 were ordered to be paid on 1 Rs. 3. 000. 00 with interest accrued due by that time were ordered to he paid by 1-4-67. Further amount of Rs. 3000. 00 with accrued interest was to be paid by 1-4-68. The next instalment of Rs. 3000. 00 with accrued interest was to be paid on 1-4-69 and the last instalment of Rs. 3000. 00 with accrued interest was to be paid by the appellant judgment debtor to the decree holder by 1-4-70. There was also provided a default clause in the said consent terms. According to the said default clause the appellant judgment debtor had to strictly follow the time table regarding the payments of instalments as agreed between the parties. But in case he committed default in payment of any instalment he was given a right to club it with the next instalment due and as and when the next instalment fell due he was to pay the total amount clubbing the earlier instalment for which he had committed default with the next instalment which had already become due of course with interest which had accrued due by that time. It was further provided that in case the Judgment debtor committed default in payment of any two instalments the appellant will have no right left in the said properties as purchaser of these properties and in that eventuality the respondent decree holder will be entitled to obtain possession of the suit properties by execution of the decree and in that case the respondent will have so treat the amounts of instalments recovered by him as mesne profit and the appellant judgment debtor will have no claim over these amounts. It was further provided in the said consent terms that when the judgment debtor paid the last instalment as mentioned above he will be considered to be the full owner of the suit properties and the decree will be treated as satisfied and the decree holder respondent will be bound to convey the suit proparties to the appellant judgment debtor at the latters cost by a registered sale document. It was further provided that till the payment of the last instalment possession of judgment debtor over the suit lands will be treated as one of purchaser as per the consent terms. Aforesaid are the relevant recitals in the consent decree. ( 3 ) IT appears that the judgment debtor appellant remained regular in payment of the instalments as per the consent terms upto a certain time. Thereafter he defaulted. He paid the first instalment amount of Rs. 1200. 00 on the very day of the consent decree i. e. on 29-11-65. He also paid the second instalment of Rs. 800. 00 on the date of the decree. So far as the balance amount was concerned it was made payable by certain instalments as per the consent terms. The first instalment under those consent terms was payable on 20-12-65 when Rs 800/- were payable by the judgment-debtor to the appellant and he paid the same on 28 The second instalment under the consent decree was payable on 1-4-66 and the amount payable was Rs. 862-50. That was also duly paid on that day. Thus upto 1-4-66 the appellant strictly carried out the time-table regarding the payment of instalment. Thereafter admittedly he became a defaulter. The third instalment of Rs. 3 0 with interest due was payable on 1-4-67 while in fact he paid Rs. 3960. 862-50. That was also duly paid on that day. Thus upto 1-4-66 the appellant strictly carried out the time-table regarding the payment of instalment. Thereafter admittedly he became a defaulter. The third instalment of Rs. 3 0 with interest due was payable on 1-4-67 while in fact he paid Rs. 3960. 00 that is the instalment amount plus interest due on 3-4-68 thus practically one year and two days after due date. So far as the 4th instalment of Rs. 3 0 was concerned it was to be paid with interest on 1-4-68 while Rs. 3360. 00 were paid towards the said instalment with interest on 24-5-69 i. e. One year one month and 24 days late. The 5th instalment of Rs. 3 0 with interest was due on 1-4-69. Still the appellant judgment debtor paid Rs. 3 0 on 3-4-70. Thus for the 5th instalment also he was late by one year and 2 days. So far as the last instalment of Rs. 3 0 with interest was concerned it was due on 1-4-70 while Rs. 3361. 00 inclusive of instalment amount and the interest due were paid on 27-5-71. Here also there was a delay of more than one year. The aforesaid instalment amounts were deposited by the appellant judgment-debtor in the court. It is also an admitted position on the record of this case that the respondent decree holder who was away in Hong Kong was being represented in the Court proceedings by a Power of Attorney Holder his own wife and it is further an admitted position that the respondents Power of Attorney Holder his wife withdrew the amounts of first five instalments from the court as and when they were deposited by the appellant judgment detbor. Thus even though amounts of instalments nos. 3 4 and 5 were deposited late by atleast one year and more on each occasion the same were withdrawn by the Power of Attorney Holder of the decree holder i. e. his wife. So far as the 6th and the last instalment of Rs. 3 0 with interest is concerned even though it was deposited late by one year on 27th May 1971 by the appellant judgment debtor in the court as stated above it was not withdrawn. So far as the 6th and the last instalment of Rs. 3 0 with interest is concerned even though it was deposited late by one year on 27th May 1971 by the appellant judgment debtor in the court as stated above it was not withdrawn. by the respondents wife but ultimately came to be withdrawn by the decree holder without prejudice to his rights and contentions subsequently in 1975. Thus it can be said at this juncture that so far as the amounts of instalments nos. 3 4 and 5 are concerned even though they were deposited in the court beyond time by the appellant the same were withdrawn without any demur by the decree holders wife and Power of Attorney Holder from the Court. ( 4 ) THE appellant as stated above ultimately deposited full amount of Rs. 14 867 with interest in the trial court as provided by the consent terms though he was admittedly a defaulter regarding the deposit of instalments Nos. 3 4 5 and 6 on their due dates The aforesaid are all admitted facts on the record of this case. The appellant thereafter filed Misc. Civil Application being Civil Miscellaneous Application No. 11 of 1971 before the Executing Court on 18th June 1971 for getting these various payments made by him under the consent decree duly certified by the Executing court and to get the decree marked satisfied to that extent. The said application as stated above in the earlier part of this judgment was filed under the provisions of Order 21 Rule (2) C. P. C. On this application the executing court namely the Court of Civil Judge Ankleshwar issued notice to the respondent decree holder under the provisions of Order 21 Rule 22. Pursuant to the said notice the respondent appeared and filed his objections at Exh. 9. It was contended by the respondent decree holder that the application under Order 21 Rule 2. C. P C. was contrary to law and was not maintainable. Pursuant to the said notice the respondent appeared and filed his objections at Exh. 9. It was contended by the respondent decree holder that the application under Order 21 Rule 2. C. P C. was contrary to law and was not maintainable. He further contented that the properties in question were evacuee properties and were allotted to him towards his various claims under the provisions of Displaced Persons (Compensation and Rehabilitation) Act 1954 and that he was an allottee of these lands and the provisions of the Tenancy Act did not apply and his wife had no right to enter into any agreement with the judgment debtor and her action was not binding on him. He further contended that he had received no amount pursuant to the decree nor was he entitled to receive any amount as an allottee of the lands. He was not entitled to withdraw the deposited amount under the said consent decree nor was he bound to withdraw the same. He was the full owner and his wife was not entitled to withdraw this amounts. Hence it was contended that the judgment debtor was not entitled to certification as prayed for by him in respect of the various amounts he had deposited in the court as per the consent decree. He also contended that he had applied to the Collector Bharuch to get the possession of the suit land and the appellants application filed under the provisions of Order 21 Rule 2 C. P. C. was liable to be dismissed. ( 5 ) SAVE and except filing of the said objections which were not relevant for the purpose of proceedings under Order 21 Rule 2 C. P. C. the respondent decree holder took no further steps in contesting the proceedings before the executing court. He did not remain present in those proceedings. The appellant filed his affidavit at Exh. 15 before the executing court declaring on oath that he had paid various amounts pursuant to the consent decree and stated that accordingly the appellant had paid up the entire amount due under the decree with interest. To this affidavit of the appellant also the respondent did not file any reply affidavit. The appellant filed his affidavit at Exh. 15 before the executing court declaring on oath that he had paid various amounts pursuant to the consent decree and stated that accordingly the appellant had paid up the entire amount due under the decree with interest. To this affidavit of the appellant also the respondent did not file any reply affidavit. The Executing court ultimately treating these proceedings as practically uncontested and noting the fact that the decree holder respondent did no file any affidavit in reply nor did he make any submission before the court in support of his objections granted the application of the appellant judgment debtor and certified by his order dated 31st January 1972 that the decree in Regular Civil Suit No. 148 of 1965 was fully satisfied. Against the aforesaid order of the Executing Court the respondent decree holder preferred an appeal being Civil Appeal No. 34 of 1972 before the District Court at Bharuch. Simultaneously with filing of the aforesaid appeal the respondent decree holder also took separate steps by filing a substantive suit on 9 being Special Civil Suit No. 8 of 1972 before the court of the learned Civil Judge (S. D.) at Broach against the present appellant. In the said suit he prayed for a decree for possession of the suit properties on the strength of his title. to the suit lands as the allottee of these lands under the provisions of Displaced Persons (Compensation and Rehabilitation) Act 1954 and in the said suit he contended that the appellant was merely a servant engaged by him for supervision over the cultivation of the suit lands and that he had no title or interest therein. He therefore prayed for a decree for possession on the strength of his title against the appellant. He further contended he had learnt that prior to the filing of his Special Civil Suit as aforesaid the appellant judgment debtor had obtained a decree in respect of the suit lands in Regular Civil Suit No. 148 of 1965 but the said decree was obtained in collusion with the respondent decree holders power of Attorney wife and that the appellant had practiced fraud upon the respondents wife. It was contended that the said consent decree was not binding on the respondent and the respondents wife had no authority to enter into any agreement or compromise with the appellant judgment debtor and the said decree was void against the proprietory rights of the respondent-decree holder. ( 6 ) THE said suit was contested by the present appellant by his written statement - inter alia - contending that the consent decree was binding to both the sides that the respondents wife being his Power of Attorney folder on behalf of the respondent had willingly entered into the compromise by which she had agreed to sell suit lands for Rs. 14862=50 payable by instalments that he had fully paid up the price and the respondents wife in her capacity as Power of Attorney of the respondent has taken away the whole of the deposited amount and that the plaintiff respondent was not entitled to possession of the suit lands from the appellant. ( 7 ) ON these pleadings of parties issues were framed by the learned Civil Judge Senior Division Broach in the Special Civil Suit No. 8 of 1972 which was flied by the respondent. Issues in the said suit will have material bearing on the fate of the present case and hence are reproduced in extenso along with the findings arrived by the Trial Court thereat: (1) Whether the plaintiff proves that the compromise ar d agreement of sale of the suit lands as arrived in R. C. S. No. 148/65 in the Court of Civil Judge (S. D) at Ankleshwar was obtained fraudulently as alleged in para 6 of the plaint? If yes whether the same is binding upon him? (2) Whether it is proved that the plaintiff was not effectively represented therein and that the same is therefore not binding upon him ? (3) Whether the defendant proves that amount of Rs. 14802. 00 is paid to the plaintiff in full discharge of this agreement? (4) Whether the defendant holds possession under this agreement and has performed his part of this contract and his willing to do so? (5) Whether the possession of the defendant is protected under sec. 53 of the Transfer of Property Act? (6) Whether the present suit or any relief thereof is barred by resjudicata ? (4) Whether the defendant holds possession under this agreement and has performed his part of this contract and his willing to do so? (5) Whether the possession of the defendant is protected under sec. 53 of the Transfer of Property Act? (6) Whether the present suit or any relief thereof is barred by resjudicata ? (7) Whether this suit is not maintainable without setting aside the compromise decree in suit No. 148/65 as stated above and/or refunding the amount of Rs. 14862. 00 if proved to have been paid ? (8) Whether the plaintiff is entitled to possession of suit fields ? (9) Whether plaintiff is entitled to mesne profits ? If yes what orders be passed for ascertaining the amounts thereof ? (10) Whether the suit or any relief thereunder is barred by limitation ? (11) Whether Bai Laxmibai is necessary partly ? If yes whether the suit not maintainable in her absence and the same should be dismissed therefore ? (12) Whether the defendant is entitled to compensatory costs ? If yes what orders be passed ? (13) What orders ? (14) What decree ?the findings of the learned Civil Judge Broach on the above issues were as under: (1) No. (2) No. (3) Yes (4) Yes (5) Yes (6) Yes (7) No (8) No (9) No (10) Yes (11) No (12) No (13) and (14) As per the final order of the learned Civil Judge. ( 8 ) A mere look at the findings on the aforesaid issues will show that the respondent plaintiff lost whole-hog. It was found that the consent decree was binding on the parties. It was further found on issue No. 3 that the present appellant had paid an amount of Rs. 14 802 in full satisfaction of the consent decree. On issue No. 4 it was found that the present appellant was already in possession of the suit lands under the decree and he had performed his part of the contract and he was willing to do so. On issue No. 5 it was found that the appellants possession of the suit lands was protected under sec. 53a of the Transfer of Property Act. On issue No. 8 it was found that the plaintiff was not entitled to possession of the suit fields. On issue No. 9 it was found that the respondent plaintiff was not entitled to mesne profit. 53a of the Transfer of Property Act. On issue No. 8 it was found that the plaintiff was not entitled to possession of the suit fields. On issue No. 9 it was found that the respondent plaintiff was not entitled to mesne profit. Thus it was decided by the trial court in Civil Suit No. 8 of 1972 that the consent decree was binding on the respective parties and that the appellant had carried out his terms of the consent agreement and that the respondent was not entitled to disturb the appellants possession as his possession was fully protected under see. 53a of the T. P. Act. Consequently the Suit No. 8 of 1972 as filed by the respondent was dismissed by the trial court on 17th June 1974 ( 9 ) IT is an admitted position between the parties that the decision in the aforesaid Special Civil Suit was the subject matter of appeal before this court being Civil First Appeal No. 77 of 1975 filed by the respondent plaintiff against the present appellant. A Division Bench of this Court Consisting of Justices J. M. Sheth and N. M. Bhatt was pleased to summarily dismiss that appeal on 19-2-75 agreeing with the aforesaid conclusions of the trial court. Thereafter the original respondents prayer for a certificate of fitness for filing an appeal to the Supreme Court was also turned down. The litigation arising out of Civil Suit No. 8 of 1972 rested at that stage between the parties. ( 10 ) MR. J. V. Desai the learned Advocate appearing for the respondent original decree holder stated before me that no further appeal could be carried to the Supreme Court against the present appellant in the said proceedings. Thus it remains an established fact on the record of this case that in Civil Suit No. 8 of 1972 it was finally decided between the parties that the appellant carried out his terms of the consent agreement and had fully paid up the amount of Rs. 14 0 and odd to the respondent decree holder and the appellant was entitled to the protection of sec. 53a of the T P. Act so far as the suit fields are concerned. 14 0 and odd to the respondent decree holder and the appellant was entitled to the protection of sec. 53a of the T P. Act so far as the suit fields are concerned. ( 11 ) IN the meanwhile Execution Appeal No. 34 of 1972 which the respondent decree holder had filed before the District Court at Bharuch against the order of the executing court by which certification application of the appellant was allowed by the executing court came to be heard by the District Court. The appellate court took the view that the consent decree was beyond the pecuniary jurisdiction of the trial court and hence it was a nullity. The said decision was given by the learned Assistant Judge Broach on 24th October 1974 That brought the judgment debtor the present appellant to this court by way of second appeal No. 136 of 1975 The said second appeal came to be allowed by S. H. Sheth J. on 12 November 1975 The learned Judge took the view that the consent decree was not without jurisdiction and consequently the learned Assistant Judge was not right in dismissing the certification application of the appellant only on that ground. But as the learned appellate Judge had not recorded any finding on merits as according to the learned Appellate Judge the trial court had no jurisdiction to pass the consent degree the matter was remanded to the District Court for decision on merits. It was directed by this court that if the appellate court found that the present appellant had paid up the amount Rs. 14 862 in the manner specified in the decree of the court should dismiss the appeal. With these directions the matter was sent back to the appellate court for a rehearing on merits. ( 12 ) IT may be stated at this juncture that even prior to the date on which the learned Assistant Judge Broach decided Regular Civil Appeal No. 34 of 1972 on the point of jurisdiction a certified copy of the judgment of the learned Civil judge Senior Division Broach in Civil Suit No. 8 of 1972 between the parties was placed on the record of the appellate court by a list of document dated 17-10-74. ( 13 ) NOW after the remand of the appeal to the District Court pursuant to the order of S. H. Sheth J the said appeal was heard by the learned District Judge Broach. The learned District Judge Broach came to the conclusion that certification application of the appellant judgment debtor was liable to be dismissed as the amounts of instalments which he had deposited in the court for payment to the judgment creditor were not made strictly according to the time schedule provided by the consent decree and the instalments Nos. 3 4 5 and 6 did show defaults on the part of the appellant judgment debtor and consequently the appellant was not entitled to get these amounts certified from the executing court under Order 21 Rule 2 C. P. C. On that finding of his the learned Appellate Judge was pleased to allow the appeal of the respondent decree holder and dismissed the certification application of the appellant original judgment debtor by his order dated 30th October 1976 ( 14 ) THE aforesaid order of the learned District Judge has prompted the appellant judgment debtor to file the present second appeal under sec. 100 read with sec. 47 of the C. P. C. ( 15 ) MR. V. J. Desai the learned Advocate appearing for the appellant judgment-debtor raised the following contentions in support of his appeal: (1) That the controversy between the parties was finally concluded by the decision of the learned Civil Judge S. D. Broach in Spl. Civil Suit No. 8/72 and the findings arrived at by the learned Civil Judge Senior Division Broach on issues Nos. 3 4 5 8 and 9 were clearly res judicata between the parties in view of the fact that the decision in Spl. Civil Suit No. 8 of 1972 came to be finally confirmed by the Division Bench of this court when it summarily dismissed the appeal of the respondent. Mr. Desai therefore submitted that no further controversy could really survive between the parties and the appellant was entitled to get the payments duly certified by the executing court pursuant to the final decision between the parties on the main controversy between them. (2) It was alternatively contended by Mr. Mr. Desai therefore submitted that no further controversy could really survive between the parties and the appellant was entitled to get the payments duly certified by the executing court pursuant to the final decision between the parties on the main controversy between them. (2) It was alternatively contended by Mr. Desai that even apart from the question of res judicata even on true construction of the consent decree it must be held that the alleged defaults in the payment of instalments did not deprive the appellant of his right of getting the suit lands sold to him under the last clause of the consent terms and the last clause of the consent terms prevailed over the prior clauses and to that extent the earlier default clauses were inconsistent and inoperative. (3) It was next submitted by Mr. Desai that in any case the defaults themselves were waived by the respondent decree holder as he did not take any action to obtain the possession of the suit lands from the appellant on the strength of these defaults but on the controversy he accepted the payments of these instalments even though late and consequently these defaults were waived and could offer no ground to the respondent to effectively challenge the application once it was an admitted position between the parties that the entire amount of instalments with interest has been ultimately deposited by the appellant in the court. (4) Mr. Desai next submitted that in any case the time was not the essence of any contract pertaining to the sale of immovable property and hence the instalment scheme should not be considered to be a mandatory one and the default clause therefore would really be inoperative at law. (5) Lastly it was contended by Mr. Desai that the respondent original decree holder did not effectively contest the certification proceedings before the executing court and he had failed to show cause why the payments or adjustments should not be recorded as claimed by the appellant. On this additional ground also the appellate court ought not to have entertained new contention of the respondent before him to the effect that the payments were not duly made in time and hence the executing court was bound to record the certification of the decree in such a situation. ( 16 ) MR. On this additional ground also the appellate court ought not to have entertained new contention of the respondent before him to the effect that the payments were not duly made in time and hence the executing court was bound to record the certification of the decree in such a situation. ( 16 ) MR. J. V. Desai the learned Advocate appearing for the original respondent has vehemently contended that the order passed by the appellate court was perfectly justified on facts and in law and the certification application of the appellant was rightly dismissed by that court. ( 17 ) I shall now deal with these rival contention of parties. So far as the first contention of Mr. V. J. Desai is concerned it is surprising that even though a certified copy of the judgment passed by the learned Trial Judge. i. e. Civil judge Senior Division Broach in Civil Suit No. 8 of 1972 between the parties was produced before the appellate court it has been completely ignored while deciding the appeal. Mr. J. V. Desai for the respondent submitted that the said judgment may not have been pressed in service before the appellate court. It may be so. But still the fact remains that it is very much on the record of the appellate Court. The plea raised by the appellant on the strength of the judgment goes to the very root of the matter and hence it has got to be considered on its merits. ( 18 ) A mere look at the judgment of the learned Civil Judge Senior Division Broach in Special Civil Suit No. 8 of 1972 and his findings on issues Nos. 4 5 8 and 9 leave no roam for doubt that it was finally decided between the parties that the consent decree was binding on both the sides and that its terms were duly complied with by the appellant he had made full payment of Rs. 14 802 and odd as required by the said decree and he had fully discharged his obligations under the decree. It was also finally decided between the parties that the plaintiff judgment creditor was not entitled to possession of the suit lands nor was he entitled to any mesne profit and that the appellants possession was protected under sec. 53a of the T. P. Act. It was also finally decided between the parties that the plaintiff judgment creditor was not entitled to possession of the suit lands nor was he entitled to any mesne profit and that the appellants possession was protected under sec. 53a of the T. P. Act. In view of the findings arrived at between the parties in Spl. Civil Suit No 8 of 1972 and the said findings having become final as stated by me earlier it must be held that the appellant had fully complied with the terms of the consent agreement which had been incorporated in the consent decree and these findings are clearly res judicata between the parties. In that view of the matter no option was left to the Executing Court but to grant the prayer of the appellant for certification of the payments under the said consent decree as per the provisions of Order 21 Rule 2 C. P. C. ( 19 ) WHEN confronted with this difficulty Mr. J. V. Desai appearing for the respondent decree holder contended that the findings reached lay the learned Civil Judge Senior Division Broach in Spl. Civil Suit No. 8 of 1972 especially on issues Nos. 4 5 8 and 9 were strictly not relevant for deciding the controversy that was posed between the parties for decision in that suit and hence these findings would not be res judicata. It is difficult to accept the said submission of Mr. J. V. Desai for the respondent. The necessary recitals from the plaint of the respondent plaintiff in Spl. Civil Suit No. 8 of 1972 have been reproduced in the judgment of the learned Judge in that case arld these recitals clearly show that the respondent plaintiff came forward with a case that he was the owner of the suit lands and the present appellant defendant in that case was unauthorisedly in possession of those fields and he was liable to hand over the possession of the suit fields to the respondent plaintiff on the strength of his title. He also of course pleaded an additional ground namely that the consent decree was not binding on the respondent as it was fraudulently obtained by the appellant in collusion with the respondent plaintiffs wife. He also of course pleaded an additional ground namely that the consent decree was not binding on the respondent as it was fraudulently obtained by the appellant in collusion with the respondent plaintiffs wife. But it is pertinent to note that it was not a suit simpliciter for declaration that the consent decree was null and void and was not binding on the parties and for permanent injunction to restrain the appellant from enforcing the said decree against the plaintiff but the suit which was very comprehensive in nature had sought possession from the appellant on the basis of the respondents alleged title 10 the suit lands. The said suit was naturally resisted by the appellant by joining issues on the merits of the contentions of the plaintiff. Moment the respondent plaintiff raised an issue of title to the suit lands for sustaining his plea for possession from the appellant and once this issue was joined by the appllant issues Nos. 3 4 8 and 9 directly arose for decision between the parties as they were material issues around which revolved the main controversy between the parties and any decision on them one way or the other had a direct effect on the right of the plaintiff to obtain the necessary reliefs from the court in that proceeding Consequently it cannot be said that issues Nos. 3 4 8 and 9 in Special Civil Suit No. 8 of 1972 were strictly not relevant for decision of the controversy between the parties in that suit. Looking to the findings on the issues themselves it could be seen that the court did decide them on evidence and found that the consent decree was not null and void and it remained binding on the respondent plaintiff and the terms of the said consent decree were fully complied with by the appellant. He had paid the amount of Rs. 14 802 and odd in question as per the agreement covered by the consent decree and the plaintiff was not entitled to possession of the suit fields nor he was entitled to mesne profits. The appellants possession was protected under sec. 53a of the T. P. Act. He had paid the amount of Rs. 14 802 and odd in question as per the agreement covered by the consent decree and the plaintiff was not entitled to possession of the suit fields nor he was entitled to mesne profits. The appellants possession was protected under sec. 53a of the T. P. Act. These findings on issues which directly arose for decision of the court in that suit have become final and they are clearly res judicata between the parties Once it is held that the decision of the court has become res judicata between the parties nothing further would survive and the appellant would be entitled to succeed and the executing court will have no option but to follow up the findings in Spl. Suit No. 8 of 1972 which are building between the parties and to pass a consequential order certifying the payments by the appellant under the said consent decree and to mark it as fully satisfied to that extent This type of order under Order 21 Rule 2 would directly follow as a logical consequence of the findings of the trial court in Spl. Civil Suit No 8 of 1972 on issues Nos. 3. and 4. I therefore accept the first contention of Mr. V. J. Desai for the appellant and hold that the aforesaid findings of the learned Trial Judge in Spl. Civil Suit No. 8 of 1972 have become final and res judicata between the parties especially when they have stood necessarily confirmed by the Division Bench decision of this Court which rejected the plaintiffs appeal before it and agreed with the order of the learned Trial Judge in Spl. Civil Suit No. 8 of 1972. ( 20 ) NOW switching over to the second submission of Mr. Desai pertaining to the merits of the certification application as filed by the appellant his one contention is that on a true interpretation of the various terms of the consent decree the earlier default clause has become practically otiose and inoperative. This contention of Mr. V. J. Desai will take me to the consideration of the relevant recitals of the consent decree. I have already extracted these recitals in extenso in the earlier part of this judgment. This contention of Mr. V. J. Desai will take me to the consideration of the relevant recitals of the consent decree. I have already extracted these recitals in extenso in the earlier part of this judgment. To recapitulate these recitals at this stage it is clear that the very first clause of the consent decree provides for a decree for possession in favour of the respondent plaintiff and against the appellant. But the second clause introduces a scheme of concession in favour of the appellant judgment debtor and puts him on certain terms. On the satisfaction of the conditions mentioned in those terms the appellant became entitled to purchase the suit property and if the appellant carried out these terms the decree for possession as passed in favour of the appellant was not to be executed. As per the aforesaid concession given to the appellant he had to pay Rs. 14 802 towards the purchase price of the suit lands to the respondent decree holder with 4% interest per annum by 1-4-1970 and the said amount was to be paid by certain instalments spread over time as already mentioned by me earlier. The default clause then followed and it provided that in case of default of any one instalment the amount due could be carried forward and could by merged with the second instalment immediately succeeding and the entire amount of the earlier instalment and the letter instalment could be paid together by the defaulter along with interest due on both these instalments Thus the scheme of default clause was that any one default by itself did not bring in its wake any penal consequence. But then followed the main default clause which was to operate if the appellant committed 2 defaults. But then followed the main default clause which was to operate if the appellant committed 2 defaults. In case of any two defaults of instalments by the appellant he would cease to have any right as purchaser of the suit propery and in that eventuality the respondent decree holder would be entitled to execute the decree and obtain possession and in Such a case whatever amounts may have been received by him shall be treated as mesne profit amounts and then follows the last clause which states that on the payment of the last instalment as stated above the judgment debtor will be considered to be the owner of the suit property and the decree will be treated and satisfied and the decree holder will be liable to execute a sale deed of the suit lands in favour of the defendant appellant at the cost of the latter. . ( 21 ) THE aforesaid scheme of the default clause as followed by the ultimate clause of the consent terms clearly shows that if the default clause operates the appellant judgment debtor would cease to have any right in the land as a prospective purchaser thereof under the terms of this consent decree but when the default clause was out of picture he would get an opportunity to fully avail of the concession granted to him under the decree and would be treated as the owner of the suit property and the decree would be treated as satisfied and in that case the decree holder will have to execute a sale deed in favour of the appellant judgment debtor. It cannot be said that the last clause of the consent terms by itself provided for making the judgment debtor owner of the suit property and the payment of the last instalment operates on its own and without any reference to the preceding clauses including the default clause. Mr. V. J. Desai wanted me to construe the last clauses as independent of the earlier clause. It is impossible for me to accede to the said request of Mr. V. J. Desai. Mr. V. J. Desai wanted me to construe the last clauses as independent of the earlier clause. It is impossible for me to accede to the said request of Mr. V. J. Desai. On a harmonious construction of all the relevant clauses of the consent decree it must be held that the last clause entitling the appellant judgment-debtor to be the owner of the suit property could operate only when the earlier default clause had not held the field but if the clauses earlier to it had held the field the last clause would necessarily give way to the operation of the default clause which would destroy the right of the judgment debtor appellant to purchase the suit property. If the last clause alone was to be operative uninhibited by the earlier default clause as Mr. V. J. Desai would like no have it the provision of the default clause would be absolutely meaningless. While construing the terms of the decree it is not open to the executing court to ignore certain clauses of the decree which the parties have deliberately chosen to incorporate in the consent terms. Under these circumstances it is not possible to accept the second submission of Mr. V. J. Desai which was to the effect that the last clause of the consent decree prevailed over the earlier default clauses which were inconsistent and inoperative. It must be held that in cases were an occasion arose to press in service the default clause it would certainly operate and to that extent the last clause would give way. But in case the default clause did not operate and did not destroy the right of the appellant judgment debtor to purchase the suit fields then in that eventuality on the payment of the last instalment the appellant judgment detbor would be entitled to purchase the suit land and at that juncture the last clause would fully come into picture. ( 22 ) THAT takes me to the third submission of Mr. V. J. Desai for the appellant. ( 22 ) THAT takes me to the third submission of Mr. V. J. Desai for the appellant. He alternatively submitted that even assuming that the default clause was not whittled down by the last clause of the consent decree even then in the present case the defaults themselves were waived by the respondent decree holder as he did not take any action to obtain the possession of the suit fields from the appellant on the strength of these defaults. But on the contrary he accepted these payments even though late and consequently these defaults were waived. Once defaults were waived they did not remain operative as defaults. This submission of Mr. V. J. Desai for the appellant requires close scrutiny. As I have already stated above it is an admitted position between the parties that the amount stipulated under the consent terms was made payable by six instalments each one of them was made payable on a particular date. So far as the first two instalments of Rs. 800. 00 and Rs. 862-50 were concerned they were duly deposited by the appellant in court and there is no dispute between the parties regarding them. Then follow the last four instalments of Rs. 3 0 each with interest namely instalments Nos. 3 4 5 and 6 each one of them was not duly complied with by the appellant judgment debtor and he deposited the amount of each of the concerned instalments with interest beyond time practically the delay being atleast of one year and more on each occasion. Thus admittedly the appellant defendant had committed defaults in payment of instalments Nos. 3 4 5 and 6 as provided by the consent decree. In the background of these admitted positions the submission of Mr. V. J. Desai regarding the waiver of these defaults on the part of the respondent has to be examined. It is no doubt true that the appellant was a defaulter so far as these four instalments were concerned and consequently the contingency contemplated by the default clause in consent decree did squarely arise. The third instalment of Rs. 3000. 00 which was payable with interest on 1-4-67 was not paid on due date and instead Rs. 3960. 00 with interest were deposited by the appellant in the Trial Court on 3-4-68 thus about one yea and 2 days late. The third instalment of Rs. 3000. 00 which was payable with interest on 1-4-67 was not paid on due date and instead Rs. 3960. 00 with interest were deposited by the appellant in the Trial Court on 3-4-68 thus about one yea and 2 days late. Consequently so far as the third instalment was concerned there was an admitted default on the part of the appellant judgment debtor. As per the first default clause in the decree whenever there was a default of any instalment the appellant judgment debtor was given further opportunity of paying up the amount of the defaulted instalment along with the amount of the next instalment due of course with interest accrued by that time and in that eventuality the default of any single instalment on his part would have no penal consequence. Thus when the third instalment of Rs. 3000. 00 payable on 1-4-67 was not duly complied with in time by the appellant he got an opportunity as per the terms of the consent decree to pay the amount of that instalment by the date on which the next instalment became due. The next and the fourth instalment of Rs 3000/- became due on 1-4-68. By 1-4-68 the appellant could have paid Rs. 3000. 00 of the defaulted instalment No. 3 along with Rs. 3000. 00 of the next instalment i. e. fourth instalment. Thus he could have paid Rs. 6000. 00 on 1-4-68. 1f he had done so the earlier default would have been wiped off as per the first clause of the consent decree. In the present case he did not do anything of the kind. On the contrary on 3-4-68 he deposited the amount of the first instalment with interest in all Rs. 6960. 00. By 1-4-68 he committed a default pertaining to even the 4th instalment of k. Rs. 3000. 00 which became due and the amount whereof with interest was deposited by the appellant on 24-5-69 being Rs. 3360. 00 in all which consisted of the principle amount of Rs. 3000. 00 of the 4th instalment with interest accrued on it. Thus by 1-4-68 the appellant had committed defaults regarding two instalments No 3 and 4. 3000. 00 which became due and the amount whereof with interest was deposited by the appellant on 24-5-69 being Rs. 3360. 00 in all which consisted of the principle amount of Rs. 3000. 00 of the 4th instalment with interest accrued on it. Thus by 1-4-68 the appellant had committed defaults regarding two instalments No 3 and 4. Moment this situation arose the second default clause in the consent decree immediately operated and as per that default clause the appellant would cease to have any right to purchase the suit lands and on that occasion the respondent plaintiff got a right to execute the decree and to obtain possession and if he had opted for the said course he would have got the liberty to retain with him whatever amounts of instalments he had received prior thereto by way of mesne profits. Thus by 1-4-68 the decree holder had got an option under the decree to treat the two defaulted instalments Nos. 3 and 4 as real defaults as per the terms of the decree and to seek possession of suit lands on the basis of the said defaults by execution of the decree. In that eventuality he could have also retained the amounts of prior instalments Nos. 1 and 2 as mesne profits But all the same it was an option given to the respondent. He could exercise the option and enforce the default clause or he might not exercise the option at all. The discretion or choice was left to the respondent himself. In any instalment decree with a default clause a right is given to one side to capitalise on the default committed by the other side if at all so desired by the side for whose benefit the default clause operates. Still the choice lies with that side to enforce the default clause or not. If it decides to enforce the default-clause the default clause operates on its own and brings in its wake all the logical consequences of such a default. Still the choice lies with that side to enforce the default clause or not. If it decides to enforce the default-clause the default clause operates on its own and brings in its wake all the logical consequences of such a default. But on the other hand a party in whose favour such a default clause operates may like to ignore the default or waive it and may on the contrary for reasons of its own insist on the compliance of other terms of the decree by the defaulting party by condoning the said default and in that eventuality it can necessarily be held that the defaults committed by the defaulting party were waived by the other side in exercise of its option not to enforce the default clauses. In the present case it is an admitted position on the record of this case that the appellant was a defaulter not only for the earlier instalments Nos. 3 and 4 but for the later instalments Nos. 5 and 6 also. All these four instalment amounts were not deposited by him in time and on each occasion he was late by one year or more still the respondent decree-holder who got an opportunity to execute the decree immediately after 1st April 1968 in exercise of his right under the default clause did not think it it for the reasons best known to him to enforce this default clause. If it was a mere case of non-action on the part of the respondent decree-holder it could be well said that his conduct was equivocal from which a clear intention to waive the defaults may not be spelt out. But in the present case it is an admitted position on record that not only the respondent decree-holder did not take any action on the basis of the default clauses under the decree and did not enforce the default clause by filing a Darkhast for obtaining the possession of the suit fields from the appellant but on the contrary even though the amounts of instalments Nos. 3 4 5 and 6 had even deposited by the appellant one year late on each occasion the respondent through his Power of Attorney his wife withdrew these amounts unconditionally and thus appropriated them towards the scheme of payment of instalments as envisaged by the consent decree even though they were deposited late every time. ( 23 ) MR. 3 4 5 and 6 had even deposited by the appellant one year late on each occasion the respondent through his Power of Attorney his wife withdrew these amounts unconditionally and thus appropriated them towards the scheme of payment of instalments as envisaged by the consent decree even though they were deposited late every time. ( 23 ) MR. J. V. Desai for the respondent decree-holder stated that so far as the last instalment of Rs. 3000. 00 which was to be deposited on 1 is concerned the respondent decree-holder had withdrawn the amount without prejudice to the rights and conventions and hence I may leave out from consideration the withdrawal of the amount of the 6th instalment so far as the question of waiver is concerned. Even if the sixth instalment amount is not considered still the fact remains that so far as the instalments Nos. 3 4 and 5 are concerned even though they were deposited late by atleast one year in each case and the appellant had committed defaults in payment of these three instalments Nos. 3 4 and 5 the respondent not only had not enforced the default clauses regard ing these three instalments though he had a right to enforce the default clauses under the consent decrees but on the contrary he withdrawn the amounts of these three defaulted instalments even though out of time unconditionally and appropriated them to his own use. This clearly shows that the respondent decree-holder exercised his option not to enforce the default clause in so far as instalments Nos. 3 4 and 5 were concerned even when occasion arose for him to enforce his right under the default clause. The unconditional withdrawal of the amounts of these instalments even though deposited late by the appellant leaves no room for doubt that the respondent had waived the defaults of these three instalments Nos. 3 4 and 5 the amounts of which even though deposited by the appellant late by one year or more were withdrawn unconditionally by the respondent and were appropriated by him to his own use. 3 4 and 5 the amounts of which even though deposited by the appellant late by one year or more were withdrawn unconditionally by the respondent and were appropriated by him to his own use. This shows that the respondent in his discretion and for the reasons best known to him was not interested in getting back the possession of the suit fields from the appellant but he was really interested in getting the amounts of the instalments which were deposited under the consent decree and was desirous of selling these lands to the appellant his defaults notwithstanding. Mr. J. V. Desai when confronted with this difficulty. submitted that once the default clause operated it provided that the decree holder could recover the possession of suit lands and could also retain the instalment amounts and appropriate them towards mesne profit and hence merely because the respondent decree holder had withdrawn the amount of these instalments which were admittedly not deposited on due date would not necessarily amount to any act of waiver of appellants defaults on the part of the decree holder. The aforesaid submission of Mr. J. V. Desai for the respondent has no substance for two reasons firstly because a clear reading of the default clause in the consent decree shows that moment the judgment debtor i. e. the appellant committed a default in payment of two instalments twin consequences immediately flowed from the said situation. The first consequence was that the appellant would lose his right as a purchaser of the lands in question and the second consequence was that the judgment creditor decree-holder would get an immediate right to execute the decree for possession and take back the possession of the suit lands from the appellant and when the decree holder so decided to execute the decree for possession by treating the default as a real default in that eventuality he could retain with him whatever instalment amounts he would have received by then from the judgment debtor as mesne profits. Thus the authority given to the respondent to retain the instalment amounts as mesne profit would accrue only when he chose to enforce the default clause by filing execution proceedings for possession of the suit property on the strength of the default clauses. Thus the authority given to the respondent to retain the instalment amounts as mesne profit would accrue only when he chose to enforce the default clause by filing execution proceedings for possession of the suit property on the strength of the default clauses. In the present case it is an admitted position that till to-day no such step has been taken by the respondent decree holder. Consequently no occasion has arisen for him to retain the instalment amounts which he may have recovered by then as mesne profits. That occasion would have arisen if he had filed the execution application at the relevant time. Even apart from this an additional aspect of the scheme of the consent terms is that at the time when the decree holder decides to enforce the default clause seeking to get possession from the appellant by execution of the decree he is given a limited right of retaining the amounts of the instalments which he would have already received by that times that is to say the instalment amounts which he would have received from the appellant prior to his defaults pertaining to the given two instalments which gave the decree holder an immediate right to get the possession of the suit lands through execution proceedings could be retained by him as being mesne profits. But the default clauses never provided that the decree holder could retain the instalment amounts pertaining to the very instalments which were in default as mesne profit. On a true. construction of the relevant default clauses it must be held that the decree holder was given a limited right to retain as mesne profits the instalment amounts of those instalment which were previously regularly deposited by the judgment debtor as per the scheme of the instalments under the decree and thereafter if the judgment debtor committed default in payment of future instalment and if at a given time two instalments were in default the decree holder could have immediately filed execution application and in that eventuality he could have retained with him the amounts of the previous regularly paid instalments by way of mesne profit. In the present else the question is not regarding the nature of the withdrawal by the respondent decree holder of the amounts of the first two instalments of Rs. 800. 00 and Rs. 862-50 respectively which were paid by. In the present else the question is not regarding the nature of the withdrawal by the respondent decree holder of the amounts of the first two instalments of Rs. 800. 00 and Rs. 862-50 respectively which were paid by. the appellant to the respondent in time but the question is regarding his withdrawal of the amounts of instalments Nos. 3 4 and 5 which were deposited beyond time. ( 24 ) AS I have already stated above once the third and fourth instalments were not duly paid in time the respondent decree holder got a right to execute the decree and to get possession of the suit lands from the appellant after 1st of April 1968 If he was inclined to enforce the default clause the respondent decree holder could have immediately applied for execution and could have sought possession of the suit lands from the appellant and if he had done so meaning thereby that he was inclined to enforce the default clause then in that eventuality the amounts of the first two instalments of Rs. 800. 00 and Rs. 862-50 which were already regularly deposited in court by the appellant for payment to the respondent and which the respondent had duly withdrawn and even the amount of Rs. 1200. 00 which was paid by the appellant on the date of the consent decree to the respondent thus totalling to Rs. 2962-50 in all could have been retained by the respondent by way of mesne profits But thereafter no question would arise of his retaining any further amounts of defaulted instalments as mesne profits. In the present case as I have already stated above the aforesaid eventuality never arose. The respondent decree holder did not treat the defaults of the instalments Nos. 3 4 and 5 on the part of the appellant as defaults at all. He could have filed execution proceeding for obtaining possession of the suit fields on the strength of the default clause after 1st April 1965 But till to-day he has not done anything of the kind. On the contrary the instalment amounts pertaining to the very instalments Nos. 3 4 and 5 regarding which the appellants was in default were received without any demur by the respondent even though they were deposited beyond time by the appellant. On the contrary the instalment amounts pertaining to the very instalments Nos. 3 4 and 5 regarding which the appellants was in default were received without any demur by the respondent even though they were deposited beyond time by the appellant. Consequently it must be held that the respondent by his own volition and for reasons best known to him did not want to enforce the default clause against the appellant pertaining to the three instalments Nos. 3 4 and 5 and on the contrary he was keen in selling the suit lands to the appellant ignoring the defaults on the part of the appellant regarding these three instalments. As I have already stated above it is an admitted position between the parties that the amounts of instalments Nos. 3 4 and 5 have been withdrawn by the respondent and have been unconditionally appropriated to his own use. Therefore it must be held that the defaults on the part of the appellant regarding the deposit of the instalment amounts pertaining to the instalments Nos. 3 4 and 5 have been willingly waived by the respondent decree holder and he has condoned these defaults by his unequivocal and clear conduct. In that view of the matter it must be held that these defaults did not remain defaults at all. Then remains the question of the last instalment i. e. the 6th instalment. Mr. J. V. Desai for the respondent is right when he contends that so far as this last instalment is concerned the decree holder has withdrawn the same from the court without prejudice to his rights and contentions in the present proceedings. Even assuming that the 6 instalment which is now a solitary instalment which remains in the scheme of instalments was not deposited by the appellant in time and that default was not waived willingly and consciously by the respondent even then the said default is meaningless for the simple reason that the consent decree does not provide for any drastic action against the appellant for non-payment of a solitary instalment in time. In fact one default is fully to be tolerated by the consent decree. It is only in a given case at a point of time in the working of the scheme of the instalments if the appellant is held guilty of defaults of two instalments that the default clause would operate in its full vigour. In fact one default is fully to be tolerated by the consent decree. It is only in a given case at a point of time in the working of the scheme of the instalments if the appellant is held guilty of defaults of two instalments that the default clause would operate in its full vigour. Hence the mere default of the 6th instalment even assuming that it is not waived by the respondent will be of no assistance to him. On the contrary the fact remains that all the instalments amounts have been now fully deposited by the appellant and the entire amount has been withdrawn by the respondent. Consequently it must be held that the default clauses as provided in the decree did not really operate at all to the detriment of the appellant. Once a conclusion is reached on the admitted facts on the record that the default clauses had not operated because of the volition of the decree holder himself who was not keen to enforce the default clause against the appellant it would necessarily follow when the appellant deposited the amount of the 6th instalment that he would become entitled to he the purchaser of the suit properties and the consent decree imposing liability on the appellant to pay up the instalment could be treated as fully satisfied. Thus the last clause of the consent terms clearly operated on the facts of the present case as the earlier defaults in respect of instalments Nos. 3 4 and 5 were waievd by the decree holder for the reasons best known to him and the reasons are not far to seek. It appears that the respondent decree holder at the relevant time was away from India in Hong Kong and his wife was managing his affairs in India and she had acted as power of attornery for and on behalf of her husband. The respondent decree holders wife as POwer of Attorney Holder has withdrawn the amounts of the instalments Nos. 1 to 5 as and when they were deposited in the trial court by the appellant and she under the circumstances at that stage as the Power of Attorney Holder of the respondent was keen on selling the suit lands to the appellant and hence late payment of these instalments was condoned by her on behalf of the respondent as his fully accredited agent. It appears that thereafter the respondent for the obvious reason that the land prices were rising sought to get out of the situation in which he found himself placed because of the conduct of his power of attorney his wife and filed Special Civil Suit No. 8 of 1972 in the Court of the Civil Judge Senior Division Broach to avoid the consent decree and to get out of the inconvenient position on account of the withdrawal of the instalment amounts by his wife and bypassing the consent decree he sought possession of the suit lands from the appellant presumably being conscious of the fact that the right to get back the suit lands under the decree and under the default clause mentioned therein had been irretrievably lost to him as the defaults were not treated as defaults by his wife when she unconditionally withdrew the instalments amounts and appropriated them to her own use on behalf of the respondent That is the precise reason why in Special Civil Suit No 8 of 1972 possession was sought from the appellant on the strength of title by passing the consent decree. It is obvious that if a party has already obtained a right to get possession through execution proceedings on the strength on an existing decree in his favour he would never be driven to file fresh proceedings for possession of the very same properties from the other side on the strength of title completely ignoring the existing decree for possession in his own favour. No normal human being would follow such an abnormal course of conduct. That shows that the respondent himself really appreciated the situation and that too quite rightly that once his Power of Attorney Holder his own wife had withdrawn the amounts of instalments Nos. 3 4 and 5 from the court even though they were deposited late by the appellant these defaults were waived by him and were of no use to him that they really gave no right to him under the decree to seek possession of the suit lands from the appellant and consequently he was driven to contend that the consent decree was a nullity and whatever his wife as Power of Attorney Holder had done under the decree was not binding on him and he thus tried to ignore the decree. He sought to obtain possession of the suit landsl afresh from the appellant. In this attempt unfortunately he failed in the Trial Court and thereafter he also lost in appeal before a Division Bench of this Court. The said decision of the Division Bench of this Court has become final as already indicated above. In that view of the matter the respondents own conduct in filing Special Civil Suit No. 8 of 1972 seeking to obtain possession of the suit fields afresh by an independent suit shows that he had washed his hands off the consent decree or any alleged right which accrued to him under the consent decree. Thus whatever defaults were committed by the appellant in depositing the instalments Nos. 3 4 and 5 were consciously waived by the respondent and the respondent was not at all inclined to treat them as defaults at all otherwise there was no earthly reason for him to take out fresh proceedings for possession of suit lands once again from the appellant by filing the aforesaid suit No. 8 of 1972. Thus taking an over all view of the admitted conduct of the respondent it must necessarily be held that he had willingly and consciously waived the defaults in respect of instalments Nos. 3 4 and 5 on the part of the appellant judgment debtor and had chosen in his discretion not to enforce the default clause at all even though such an occasion arose in his favour after 1st April 1968 The third submission of Mr. 3 4 and 5 on the part of the appellant judgment debtor and had chosen in his discretion not to enforce the default clause at all even though such an occasion arose in his favour after 1st April 1968 The third submission of Mr. V. J. Desai therefore has got to be accepted and it must be held that in the admitted facts of the present case the default clause did not effectively operate at all and the respondent by his own volition had chosen not to enforce the same against the appellant and once the default clause was out of picture and once it was an admitted position between the parties that all the instalments were ultimately deposited by the appellant with full interest for payment to the respondent decree holder he had fully complied with the terms of the decree and whatever defaults were committed on his part were all ignored and condoned by the respondent with the result that the default clause went out of picture and the last clause in favour of the appellant operated on its own as it would naturally operate if its operation is not cut short by any effective enforcement of the proceeding default clause by the respondent who had got an opportunity to enforce the same after 1 April 1968 It must be held that the appellant became entitled to purchase the suit lands as per the last clause of the consent decree itself and he also became entitled to get the decree to that extend marked satisfied and to get the sale deed of the suit lands executed in his favour from the respondent decree holder. ( 25 ) THAT takes me to the fourth contention of Mr. V. J. Desai. It was submitted that the consent decree in question really provided for a contract between the parties regarding sale and purchase of immovable property and when the purchase price in such a contract is provided to be made payable by instalments it cannot be said that the scheme of instalment is a mandatory scheme and the time would never be the essence of such contract. Mr. Mr. V. J. Desai in this connection sought support from a Supreme Court Judgment rendered in the case of Gomathinayagam Pillai and others v. Palaniswami Nadar reported in 1967 S. C 868 wherein the Supreme Court has held that ordinary presumption is that in contract for sale of land stipulation as to time is not of essence. The aforesaid decision of the Supreme Court makes it clear that if the contract of sale of immovable property provides for no default clause it envisages an intention of the contracting parties that the time was not an essence of the contract. Here in the present case the contract between the parties provides for default clause and consequently the time becomes an essences of the contract and hence the aforesaid decision of the Supreme Court can be of no assistance to Mr. V. J. Desai. As I have already stated above the parties are bound by the consent terms incorporated of the decree to which they willingly agreed. As the fourth submission of Mr. V. J. Desai is devoid of any substance the same has got to be rejected. ( 26 ) THAT takes me to the last submission of Mr. V. J. Desai. He submitted that by the application of the appellant under Order 21 Rule 2 the appellant judgment debtor wanted to show to the executing court that he had made the payments as provided by the decree and these payments were required to be certified as they were the payments made according to the terms of the decree and in so far as they imposed any liabilities on him. Mr. V. J. Desai submitted that pursuant to the application before the Executing Court a notice was issued to the respondent decree holder to show cause why such payments should not be recorded or adjustment should not be certified. After the service of notice objections were filed by the respondent decree holder at Exh. 9. Most of these objections were irrelevant. Therefore he had really shown no objection. He had not filed any affidavit while the appellant had filed his affidavit at Exh. 15 in support of his application. Thus in the facts and circumstances of the case the respondent decree holder failed to show cause as to why the payments or adjustments should not be recorded. Therefore he had really shown no objection. He had not filed any affidavit while the appellant had filed his affidavit at Exh. 15 in support of his application. Thus in the facts and circumstances of the case the respondent decree holder failed to show cause as to why the payments or adjustments should not be recorded. Under the circumstances the executing court was bound to record the said payments or adjustment. As I have already stated in the earlier part of this judgment it is an admitted fact between the parties that after the notice was issued to the respondent to show cause why relief as prayed for should not be granted to the appellant in his application under Order 21 Rule 2 (2) C. P. C. the respondent decree holder filed objections at Exh. 9. A mere look at his objection shows that he has nowhere based his case on the defaults committed by the appellant so far as instalments Nos. 3 to 6 were concerned. Nowhere has he invoked the default clause. Thus the respondent decree holder was really not at all interested in default clauses but the objections which he raised were all mostly irrelevant for the purpose of deciding the controversy between the parties as per the requirement of Order 21 Rule 2 (2) C P. C. But apart from this fact the respondent decree holder did not remain present before the Executing Court at any subsequent stage of the proceedings nor did he file any affidavit in reply to Exh. 15 of the judgment debtor. Thus it must be held that the respondent decree holder did not really show cause why the relief as prayed for by the appellant should not be granted to him as per the provisions of Order 21 Rule 2 (2) C. P. C. in pursuance to the notice issued to him by the executing court. ( 27 ) MR. J. V. Desai for the respondent decree holder submitted that in the present case Order 21 Rule 2 (2) C. P. C. cannot really apply for the simple reason that the attempt of the appellant was to get the consent decree varied under the guise of the present proceedings wherein he was seeking to get the payments certified by the executing court and to get the decree marked satisfied. Mr. Mr. J. V. Desai submitted that the attempt of the appellant really was to seek an additional ground in the consent decree to the effect that once there was default of two instalments a right to get possession forthwith arose in favour of the decree holder that such attempt really amounted to variation of the decree. Mr. J. V. Desai further submitted that once two defaults were committed by the appellant in payment of instalments nos. 3 and 4 and which default further continued when the next instalments Nos. 5 and 6 were not deposited by the appellant in time a right of course arose to the decree holder to file the execution proceedings and to get possession of the suit lands. But he could file the execution proceedings within 12 years from the time the said right accrued to him and even assuming that such a right arose in favour of the decree holder for the first time on 1st April 1968 by which time the appellant had committed default of instalment Nos. 3 and 4 even then the respondent decree holder could wait till the full period of 12 years was over from last April 1968 for filing the execution proceedings. Mr. J. V. Desai is right when he contends that the respondent decree holder had a full period of 12 years to file the execution proceedings under the Limitation Act 1963 But the question here is a different one. Even though the respondent may have a right to file the execution proceedings till the period of 12 years was over the respondent in the meantime by his own voluntary conduct had waived his right by appropriating the instalment amounts in respect of instalments No. 3 4 and 5 even though deposited late without any demur and without any objection. The right which has accrued to him was voluntarily given up by him and the defaults of three instalments Nos. 3 4 and 5 ceased to exist as defaults and were completely obliterated by the conduct of the respondent. So far as the submission of Mr. J. V. Desai for the respondent pertaining to the scope of Order 21 Rule 2 (2) is concerned Mr. J. V. Desai is perfectly justified in submitting that under the guise of certification proceedings no attempt can be made by the appellant to get the decree varied by the executing court. Mr. So far as the submission of Mr. J. V. Desai for the respondent pertaining to the scope of Order 21 Rule 2 (2) is concerned Mr. J. V. Desai is perfectly justified in submitting that under the guise of certification proceedings no attempt can be made by the appellant to get the decree varied by the executing court. Mr. J. V. Desai cited before me an unreported judgment of Justice Raju in Appeal No. 343 of 1962 decided on 30 August 1963 wherein it has been held that getting a relief as existing in a decree changed under the guise of adjustment proceedings would amount to making a new decree or varying the terms of the decree. Such aa attempt cannot be countenanced under the procedure laid down in Order 21 Rule 2 (c) C P C. It has been held by Raju J. in the aforesaid decision that the adjustment of a decree is something different from the variation of the decree. The same is the view taken by the Privy Council in Rajah Kotatagiri Venkata Subbamma Rao v. Rajah Vellanki Venkatrama Rao reported in Vol. 27 Indian Appeals 197. At pages 204 and 205 it has been laid down by the Privy Council that in adjustment proceedings no review of the decree was permissible no amendment could be granted to alter the decree between the parties in execution proceedings. Mr. 27 Indian Appeals 197. At pages 204 and 205 it has been laid down by the Privy Council that in adjustment proceedings no review of the decree was permissible no amendment could be granted to alter the decree between the parties in execution proceedings. Mr. J. V. Desai for the respondent then drew my attention to a judgment of the Division Bench of the Madras High Court rendered in the case of Lodd Govindoss Krishna Doss v. Ramadoss Vishnadoss reported in A. I. R. 1916 Madras 604 wherein the Madras High Court while dealing with Order 21 Rule 2 C. P. C. laid down that the adjustment of a decree referred to in Order 21 Rule 9 of the Code of Civil Procedure is a transaction which extinguishes the decree as such in whole or in part and results in the satisfaction of the whole or a portion of the decree in respect of the particular relief or reliefs granted by the decree and the transaction by which the parties agree to vary the modes by which the relief granted by the decree are to be realised in execution of that decree or the time when the decree becomes executable is not an adjustment of the decree but is a transaction which attempts to vary the terms of the decree leaving the altered terms to stand in the place of the original terms of the decree so as to constitute a new executable decree and the decree cannot be varied by such a transaction. Mr. J. V. Desai also invited my attention to a judgment of the Allahabad High Court in the case of Laxmin Das v. Baba Kali Kamliwala reported in A. I. R. 1922 Allahabad 13 as well as the judgment of the Madhya Pradesh High Court in the case of Gyasiram Kanairam Vaish v. Brij Bhushandas and another reported in A. I. R. 1973 Madhya Pradesh 148. Mr. J. V. Desai also cited a number of other judgments of different High Courts on this point. Mr. J. V. Desai also cited a number of other judgments of different High Courts on this point. ( 28 ) A resume of the aforesaid decisions leaves no room for doubt that under Order 21 Rule 2 proceeding no attempt can be permitted to vary the decree and in order to be termed as adjustment of the decree it must be shown that by the act of one of the parties the decree has stood satisfied in whole or in part. Only in that eventuality the decree can be said to be adjusted in whole or in part. In the present case all these judgments are of no assistance to Mr. J. V. Desai as no attempt is made by the appellant to get the terms of the decree altered in any manner. ( 29 ) IT has been clearly found as a result of the aforesaid discussion that the appellant sought assistance of the Court under Order 21 Rule 2 C. P. C. to get the payment made according to the consent decree duly certified and to get noted by the executing court. In fact he had discharged all his liabilities under the consent decree and the decree to that extent was satisfied and was required to be certified as such. Thus the appellants endeavour was to show to the executing court that he had behaved according to the decree made payment as required by the decree and thus his liability under the decree was fully complied with and to that extent the decree was satisfied. This endeavour on the part of the appellant did not in any manner amount to an attempt to vary the decree or to alter any of its terms. On the contrary it was just in consonance with the decree and the attempt was to show to the court that the decree was satisfied to that extent on due compliance with the terms of the decree. It was an established fact on the record of this case that the relevant terms of the decree were fully complied with by the appellant. He had made the payments as required by the said decree and consequently the decree to that extent stood satisfied. Under the said decree payments were required to be certified as well as the adjustment of the decree was required to be certified. He had made the payments as required by the said decree and consequently the decree to that extent stood satisfied. Under the said decree payments were required to be certified as well as the adjustment of the decree was required to be certified. These attempts on the part of the appellant were not obnoxious to or de hors the provisions of Order 21 Rule 2 nor can it be said that the attempt on the part of the appellant was to vary the decree. Under these circumstances it must be held that the appellant was entitled to the relief as he claimed from the executing court. Once it is held that the respondent decree holder did not effectively show cause at to why the relief claimed by the appellant should not be granted by the executing court in the proceedings under Order 21 Rule 2 no option was left with the executing court but to allow the said application as required by Order 21 Rule 2 (2) C. P. C. Consequently in that view of the matter the last submission of Mr. V. J. Desai is required to be upheld. ( 30 ) AS a result of the aforesaid discussion the conclusion is inevitable that the decision Rendered by the learned District Judge in Regular Civil Suit No 34 of 1972 was obviously suffering from an apparent error of law and on a mis-construction of the relevant provisions of law the learned District Judge Bharuch had passed his order and hence the said order is vitiated in law and cannot be permitted to stand. In the result the appeal is allowed. The judgment and order passed by the learned District Judge Bharuch in Regular Civil Appeal No. 34 of 1972 are set aside and instead the judgment and order passed by the learned Civil judge Junior Division Ankleshwar on 31-1-72 in Miscellaneous Civil Application No. 11 of 1971 is restored In view of the facts and circumstances of the case there will be no order as to costs. Orders accordingly. Appeal allowed. .