Decided on December 05,1979



S. B. MAJMUDAR - (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. 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. 3960.00 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 & 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. 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 & 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.;

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