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2015 DIGILAW 517 (HP)

Kashmiri Lal v. Kishori Lal

2015-05-13

SURESHWAR THAKUR

body2015
Judgment Sureshwar Thakur, J. OMP No. 137 of 2015. Application for modification of consent decree being OMP No. 137 of 2015 is dismissed as withdrawn. However, liberty reserved to the applicant to institute an appropriate suit before the Civil Court for setting aside the decree, if any, obtained by the plaintiff herein on the purported ground of fraud and collusion. OMP No. 310 of 2014, 518 of 2014 & OMP No. 368 of 2014. Consent decree comprised in Annexure A-3 is harbored upon a compromise deed comprised in Ext.C-1 thereby both Civil Suit No. 81 of 2011 titled as Kashmiri Lal Vs. Kishori Lal, which is the extant suit, and another Civil Suit No. 2 of 2012 titled as Kashmiri Lal Vs. Kishori Lal, pending in the Court of Learned District Judge, Hamirpur, H.P. besides another Civil Suit No. 100 of 2011 titled Kishori Lal vs. Kashmiri Lal pending in the Court of learned Civil Judge (Sr. Division), Hamirpur, were settled. Insofar as Civil Suit No. 81 of 2011, which is the extant civil suit, qua which the consent decree was rendered by this Court comprised in Annexure A-3, the defendant herein/Judgment debtor was obliged to defray to the plaintiff a sum of Rs.75 lacs in three equal instalments of Rs. 25 lacs each payable on or before 31st July, 2014, 31st July, 2015 and 31st July, 2016. It was also mandated therein that in case the defendant/judgment-debtor commits default in the payment of any instalment, the suit shall stand decreed and the defendant was enjoined to execute a sale deed qua the suit property with the plaintiff/decree-holder. Uncontrovertedly, the defendant/judgment-debtor has omitted to defray to the plaintiff herein or has committed default in tendering to the plaintiff/decree-holder cash instalments within the time schedule prescribed in Ext.C-1. Consequently, the plaintiff/decree-holder foists a claim upon the judgment-debtor to execute, as ordained in Ext.C-1, a sale deed qua the suit property with him. The defendant/judgment-debtor has, however, contrived a novel legal mechanism to evade the decree, even when he has committed default in tendering to the plaintiff the cash instalments within the schedule prescribed therein. The decree is a consent decree, hence, is conclusive and binding upon both the plaintiff and the judgment debtor. The defendant/judgment-debtor has, however, contrived a novel legal mechanism to evade the decree, even when he has committed default in tendering to the plaintiff the cash instalments within the schedule prescribed therein. The decree is a consent decree, hence, is conclusive and binding upon both the plaintiff and the judgment debtor. The consequence of the defendant/judgment-debtor omitting to defray to the plaintiff/decree holder cash instalments within the time schedule prescribed therein is of his being obliged to execute a sale deed qua the suit property with plaintiff/decree-holder. However, the judgment debtor has made arduous efforts before this Court portraying financial disempowerment which disables him to defray to the plaintiff decree holder the cash instalments as prescribed in Ext.C-1. The obligation cast upon the judgment debtor necessitated immediate, prompt and strict compliance within the parameters of Ext.C-1. No latitude or leeway is permissible to the judgment-debtor to evade or omit to defray to the plaintiff the cash amount or even claim for extension of time for their defrayment to the plaintiff/decree-holder even when he stands financially disabled to tender them to the plaintiff/decree holder. The applications, which have been instituted, on the part of the defendant-judgment debtor for extension of time for defraying to the plaintiff/decree holder the cash instalments, are hence of no avail and of no aid to the judgment debtor/defendant for facilitating the relief as prayed for in the applications, especially when the recitals/obligations in Annexure A-1 which is a consent decree, are couched in mandatory term, as such, prohibit this Court to enlarge or extend time, as prayed for by the counsel for the judgment debtor, for now tendering within the extended time or enlarged time the cash instalments, peremptorily entailed to be defrayed by the judgment debtor to the decree holder within the time prescribed. Necessarily then the applications now instituted at the instance of judgment debtor defendant for extension of time or enlargement of time for complying with the mandate of consent decree are to be rejected. Necessarily then the applications now instituted at the instance of judgment debtor defendant for extension of time or enlargement of time for complying with the mandate of consent decree are to be rejected. Beside another application instituted by the defendant under the provisions of Order 40 Rule 1 CPC canvassing therein the plea that this Court appoint a receiver to sell the suit property for marshalling funds to defray to the plaintiff the cash instalments prescribed in the consent decree is too a well devised contrivance to only seek enlargement and extension of time for marshalling and mobilizing funds for defraying to the plaintiff the cash instalments whereas the cash instalments prescribed in the consent decree were to be defrayed to the plaintiff within the time schedule prescribed therein, without any departure therefrom or any non adherence to the time schedule existing therein. Non adherence, if any, by the judgment debtor to the time schedule prescribed therein for defrayment by him to the decree holder the amounts as referred to hereinabove has reared, as enshrined in paragraph 4 of Ext.C-1, the consequence of the defendant/judgment debtor being obliged to execute qua the suit property a sale deed with the plaintiff/decree holder. Besides, the application is also frivolous and necessitates its rejection as no power vests in this Court to appoint a receiver to sell the property of the judgment debtor, i.e. the suit property which empowerment is the sole repository of the owner of the property. Therefore, the application is rejected. Sale deed qua the suit property with the plaintiff/decree-holder shall be executed by the defendant judgment debtor within one month.