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CASE NO.: Appeal (civil)  7535 of 2005

PETITIONER: N.K. Rajgarhia                                                   

RESPONDENT: M/s. Mahavir Plantation Ltd. & Ors.                              

DATE OF JUDGMENT: 16/12/2005

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T [Special Leave Petition (Civil) No.17920 of 2005]

S.B. SINHA, J :

       Leave granted.

       Interpretation of a consent order falls for determination by this Court  in this appeal which arises out of a judgment and order dated 17.05.2005  passed by a Division Bench of High Court of Delhi in EFA(OS) No.  22/2004.

       The Respondent herein took an advance of certain sum of money from  the Appellant herein.  A suit for recovery of Rs. 75 lakhs towards refund of  the said amount with interest and damages was filed by the Appellant.  The  parties, however, entered into a compromise in terms whereof the Appellant  was to receive a sum of Rs. 41,69,110/-, the relevant clause whereof reads as  under:

"\005It is specifically made clear that on dishonour of the  said cheques or any one of them on any ground  whatsoever then and in that event the entire remaining  balance amount shall become payable at one time and the  plaintiff shall be entitled to execute the decree for  realization of the entire remaining balance amount which  shall remain payable plus interest to be calculated @15%  p.a. and shall also be entitled to take all legal steps as  may be permissible under the law to the plaintiff."

       It is not in dispute that the Respondent herein paid a sum of Rs. 5  lakhs to the Appellant and as it failed and/ or neglected to abide by its  undertaking as regard payment of the balance sum, an execution application  came to be filed which was marked as Execution Application No. 58 of  2001.  In the said execution proceedings again, the parties entered into a  settlement and a learned Single Judge of the Delhi High Court by an order  dated 13.9.2001 recorded the same which reads as under:

"\005These undertakings are accepted.  He further agrees  that in case any of the cheques is dishonoured he will be  liable for not only contempt for violating these  undertaking.  The decree holder shall be entitled to  execute the balance decree immediately.  It is also agreed  between the parties that the decree holder shall withdraw  all civil/ criminal cases after the entire payment is made  by judgment debtor in the manner stated above.   However, the decree holder shall not pursue these cases  and get these cases adjourned after 20.3.2002 by which  time the judgment debtor is supposed to clear the entire

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decretal amount.

The execution petition accordingly is disposed of."

       Allegedly, the Respondent became a defaulter again.  As three  cheques out of six post dated cheques were dishonoured, another execution  application was filed by the Appellant herein which was marked as  Execution Application No. 45 of 2002.  The Respondent, however, filed an  application for extension of time and a learned Single Judge of the Delhi  High Court, relying on or on the basis of the decision of this Court in Smt.  Periyakkal and others v. Smt. Dakshyani, [AIR 1983 SC 428], granted such  extension stating:

"\005It is on account of the illness of the Managing  Director of the judgment debtor company and on account  of the fact that the company is facing financial problems,  extension/ enlargement of time for the payment of  balance decretal amount is made.  The judgment debtor is  also agreeable to pay interest at the rate of 15% per  annum on the reduced balance amount.  Though  ordinarily time for payment should not be extended on  the mere asking of the judgment debtor, but in the present  case disallowing the judgment debtors’ request would  cause great injustice to the judgment debtor.   Accordingly, in order to meet the ends of justice, the  application for extension of time is allowed.  The decree  holder would present the cheque dated 20th January, 2002  and 20th February, 2002 for Rs. 6 lakhs each on 20th  March, 2002 along with the third cheque dated 20th  March, 2002 for Rs. 2,04,222/-.  The judgment debtor  would also pay Rs. 22,500/- towards interest calculated at  the rate of 15% per annum on that date.  The judgment  debtor would, thus, clear the entire decretal amount on  20th March, 2002.  The application is accordingly  disposed of."

       The Appellant preferred an appeal thereagainst and by an order dated  20th March, 2002, a direction was issued by the Division Bench of the Delhi  High Court.  The Division Bench directed the Respondent to present three  cheques on that day itself and in case those cheques were not enchased, it  was threatened that appropriate proceedings would be initiated.  It does not  appear that any notice was issued to the Respondent in the said appeal.  By  an order dated 1.4.2002, the said appeal was disposed of stating:

"We have perused the record and also the application  filed today indicating that two of the cheques given by  the judgment debtor have been dishonoured and the fate  of the third cheque is not known.  The respondent  primarily filed an application before the learned Single  Judge for grant of extension of time for making payment.   The learned Single Judge granted the extension for  making payment until 20.3.2002.  Since the extended  time has already come to an end the appeal to our mind  has become infructuous.  The appellant will be, however,  within his rights to approach the learned Single Judge for  execution as well as for contempt.  The filing of the  appeal will not come in the way of the appellant in  pursuing his remedy before the learned Single Judge."

       The said order of the Division Bench is said to be still in force.  The  Respondent, however, obtained another extension from another learned  Single Judge of the High Court in terms of an order dated 28.8.2002.  The

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Appellant, herein did not question the said order.  The said order, thus,  attained finality.

       It is, however, not in dispute that the judgment debtor has paid the  entire amount together with interest in terms of the consent order dated  5.2.2002 passed in the aforementioned execution petition.  It is, furthermore,  not in dispute that the contempt application filed against the Respondent  herein by the Appellant for violating the undertaking by him has ultimately  been dismissed.

       The short question which, thus, arises for consideration is the  interpretation of the words "balance decree" occurring in the order dated  13.9.2001, as extracted supra.

       The contention of the learned counsel appearing on behalf of the  Appellant is two-fold.  Firstly, the High Court of Delhi had no jurisdiction to  grant extension of time for payment of the decretal dues without his consent  and secondly, having regard to the fact that the Respondent failed to abide  by its undertaking, the original claim of the Appellant revived.           The contention of Mr. C.N. Sree Kumar, learned counsel appearing on  behalf of the Respondent, on the other hand, was that despite Rule 4 of  Order XXIII of the Code of Civil Procedure, there does not exist any bar to  enter into a compromise at the execution stage and, in any event, with regard  to the fact that the entire amount has now been paid, this Court should not  exercise its discretionary jurisdiction under Article 136 of the Constitution  of India in favour of the Appellant.

       The suit was filed for recovery of a sum of Rs. 75 lakhs.  The consent  decree passed by the court shows that a decree for a sum of Rs. 41,69,110/-  became payable wherefor nine cheques were issued.  It is also not in dispute  that the plaintiff waived his remaining claim on the premise that the  Respondent had agreed to settle the disputes.

       Clause (b) of the Compromise Petition filed by the parties merely  shows that in the event, any of the cheque is dishonoured or returned unpaid,  the entire remaining balance amount shall become payable at one time in  which event, the decree holder would be entitled to execute the decree for  realization of the entire remaining balance amount plus interest calculated at  the rate of 15% per annum.  Order XXIII, Rule 4 of the Code of Civil  Procedure states that other provisions thereof are not applicable to an  execution proceedings.  But, despite the same, it is now well-settled that the  parties may enter into a settlement even in a execution proceedings.

       In Moti Lal Banker (dead) by his legal Representative v. Maharaj  Kumar Mahmood Hasan Khan [AIR 1968 SC 1087], this Court held such  compromise to be permissible in law stating:

"\005Independently of Order 23, Rule 3, the provisions of  Order 21, Rule 2 and Section 47 enable the executing  Court to record and enforce such a compromise in  execution proceedings. Nor does Order 20, Rule 11(2)  affect this power of the executing Court. Order 20, Rule  11 enables the court passing the decree to order  postponement of the payment of the decretal amount on  such terms as to the payment of interest as it thinks fit on  the application of the judgment-debtor and with the  consent of the decree-holder. It does not affect the power  of the executing Court under Section 47 and Order 21,  Rule 2."

       Yet again in Periyakkal (supra), this Court held that, in certain  situations, the court has also jurisdiction to extend the time stating:

"\005The parties, however, entered into a compromise and

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invited the court to make an order in terms of the  compromise, which the court did. The time for deposit  stipulated by the parties became the time allowed by the  court and this gave the court the jurisdiction to extend  time in appropriate cases. Of course, time would not be  extended ordinarily, nor for the mere asking. It would be  granted in rare cases to prevent manifest injustice. True  the court would not rewrite a contract between the parties  but the court would relieve against a forfeiture clause;  And, where the contract of the parties has merged in the  order of the court, the court’s freedom to act to further  the ends of justice would surely not stand curtailed."

       There cannot, thus, be any doubt that the compromise entered into by  and between the parties hereto in the execution proceedings was valid in  law.  The Appellant moreover does not say that the same was not acted  upon.  Admittedly, he received the entire amount thereunder, albeit  belatedly; but even therefor the Respondent applied for and obtained  extension of time to pay the same.

       Rightly or wrongly, the learned Single Judge of the Delhi High Court  by an order dated 28.8.2002 extended the time to the Respondent herein for  paying the decretal amount with interest upto 23.7.2002.  The Appellant  herein had accepted such amount and that order was not questioned and,  thus, the same had attained finality.  What was questioned was the liability  incurred by the Respondent  not being able to adhere to the terms thereof.   

       If the orders of extension have validly been passed, the order of the  court stood complied with.  It may be true that the order dated 1.4.2002 was  not questioned by the Respondent before this Court but then no direction  was issued therein.  No judgment was passed.  The said order was passed  without issuing any notice to the Respondents.  The appeal was disposed of  as having become infructuous.  It was, thus, not final. Thereby, merely a  liberty had been granted to the Appellant to agitate his grievances before the  learned Single Judge for execution as well as for contempt.  By reason of the  said order, alone the Appellant could not put forth his claim.  The Appellant,  thus, cannot take any benefit thereof.

       An order of a court of law and, in particular, a consent order, must be  read in its entirety for the purpose of ascertaining its true intent and purport.   

       The learned Single Judge in his order dated 13.9.2001 recorded as to  how much amount was paid by the Respondent to the Appellant before the  execution case was filed.  The execution case admittedly was filed for  recovery of the balance sum of Rs. 36,59,110/- together with interest at the  rate of 15% per annum.  The settlement between the parties was arrived at at  this juncture in terms whereof it was agreed:

"1. The judgment debtor shall pay the balance amount of  Rs. 36,59,110 in the instalments. 2. For the past period, i.e., from the date of Decree till  date the judgment debtor shall pay the lump sum interest  of Rs. 6,35,082. 3. The judgment debtor shall pay 15% interest on the  principal amount of the further period."

       Not only the Respondent agreed to pay a lump sum interest of Rs.  6,35,082 but also became agreeable to pay 15% interest on the principal  amount of the further payment.  On calculation, a sum of Rs. 42,04,222/-  was found to be payable out of which the judgment debtor had paid a sum of  Rs. 10,00,000/- by way of three demand drafts.  Appropriating the said  amount, the outstanding principal sum came to Rs. 26,69,110.  However, the  balance amount outstanding as on that day came to Rs. 32,04,222.  It was  that  amount which was to be liquidated by paying instalment of Rs. 6 lakhs

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each per month.  It is in the aforementioned backdrop, the undertaking given  before the learned Single Judge of the High Court by the Respondent herein  is to be construed.

       The contention of the learned counsel appearing on behalf of the  Appellant is that once a default is committed by the Respondent, the  Appellant in terms thereof , would be entitled to execute the balance decree  immediately which would mean he would be entitled to a further sum of  about Rs. 41 lakhs, which was waived by him.  We do not agree.  The word  ’decree’ after the word ’balance’, in our opinion, has been used loosely.  The  matter might have been different if the amount payable under the  compromise entered into by the parties in the execution case would have  been less than the amount paid by the Respondent to the Appellant in terms  of the consent decree passed originally.  It is not so.  Whereas under the  original decree, a sum of Rs. 41,69,110/- was payable, in terms of the  consent order passed in the execution case, a sum of Rs. 42,04,222/- became  payable.  The sum which was waived by the Appellant did not form part of  the consent decree.  It was merely a claim.  Such a claim never fructified  into any decree and in that view of the matter the plea of  Respondent being  liable to pay the said amount to the Appellant despite the fact that no decree  in relation thereto was passed cannot be countenanced.   

       For the reasons aforementioned, we are of the opinion that the  impugned judgment and order cannot be faulted.  This appeal is dismissed.   However, in the facts and circumstances of this case, there shall be no order  as to costs.