P. Jaganmohan Reddy, J. - (1.) This appeal is by certificate against the judgment of the Calcutta High Court allowing the appeal from an order made on an application for execution at the instance of the decree-holder giving the judgment-debtor an opportunity to take appropriate proceedings for execution of some clauses in the decree which were apparently in his favour. The respondent is ex parate.
(2.) The appellant who was carrying on business under the name and style of C. S. Ling and Co., in Hongkong, filed a suit in the Supreme Court of Hongkong and obtained a decree against the respondent on the basis of which he filed a suit in the Calcutta High Court, being O. S. No. 3459/54 for the recovery of Rs. 15,73,161/- lent and advanced by the appellant to the respondent. The parties compromised and a consent memo was filed in terms of which a decree was passed on 22-2-1961 for Rs. 5,44,554.45 P. equivalent to 6,60,000 H. K. The consent decree provided as follows:- 1. There will be a decree in favour of the plaintiff for the sum of HKS 6,60,000/- Hong Kong Dollars equivalent of Rs. 5,44,554.45 p. at the rate of HKS, 120.20 to Rs. 100/- in full and final settlement of all claims, subject to the following terms and conditions. 2. The said sum of Hong Kong Dollars HKS. 6,,60,000 equivalent to Rs. 5,44,554-45 will be paid by the defendant Nand Kishore Jhajharia to the plaintiff Chen Shen Ling subject always to the permission of the Reserve Ban being first obtained in the manner following:- (a) The sum of HKS 50,000.00 Hong Kong Dollars equivalent to Indian Rupees of 41,254.12 np. will be paid immediately to Messrs. Sanderson and Morgans after receipt of authority from the Reserve Bank for the said Messrs. Sandersons and Morgans to hold the same pending the Reserve Bank's permission being obtained to pay the same to the plaintiff. (b) The balance amount will be paid by the defendant to the plaintiff by instalments thereafter at the rate of Hong Kong Dollars HKS. 50,000.00 equivalent to Indian Rs. 41,254.12 np. payable 6 monthly, the first of such payment to be made 6 months after the first payment and thereafter at 6 monthly intervals until the whole amount provided in clause 1 hereof has been paid and discharged. All such payments shall be made by the defendant N. K. Jhajharaia in Indian Rupees as referred to above. (c) The last instalment shall be of such amount as may be necessary to discharge the said sum referred to in Clause 1 hereof. (d) The subsequent payments provided for in these terms shall be made by the defendant N. K. Jhajharia in the United Commercial Bank Ltd., Calcutta to the credit of the plaintiff C. S. Ling's Block Account. (e) If any of the instalments is in default and remains unpaid for three months or more, execution may be issued in respect of such instalment, and if any one instalment is in default and is unpaid for 6 months or more, execution shall issue for the whole amount or the balance sum that may remain due. Provided that if the defendant is prevented from payment of the amount of account of delay in obtaining of the permission of the Reserve Bank by the plaintiff the defendant will not be treated in default. (f) Immediately on payment of the first instalment of Hong Kong Dollars HKS. 50,000.00 equivalent to Indian Rupees 41,254.12 np. In the manner as aforesaid by the defendant, the plaintiff will unconditionally make delivery available to Mr. N. K. Jhajharia or his nominee of 4557 rubber tyres which are the subject matter of the above suit and fully mentioned in the written statement filed by the defendant free from all lien, claims, charges, encumbrances of any kind whatsoever. (g) The proceeds of sale of the tyres referred to in sub-paragraph (f) hereon when received by the defendant after deduction of the expenses incidental to the sale thereof, shall be paid immediately after receipt to the plaintiff in the manner aforesaid in reduction of the balance sum as may be due and in pro tan to satisfaction thereof. (h) The defendant shall, as from the date of delivery of the said tyres being made available in the manner set out in sub-paragraph (f) herein be responsible for all storage charges in respect of the said tyres and shall be free to deal with the same in such manner as he deems fit without any interference by or on behalf of the plaintiff. (i) The plaintiff above-named undertakes to Court to have the rights in respect of the Hong Kong judgment by him modified as per these terms within one month from the date hereof and hereby surrenders all his rights for payment of any amount as provided in the Hong Kong Judgment in excess of the amount mentioned in these terms and undertakes to Court not to execute the Hong Kong decree or take any other steps in respect of the Hong Kong judgment except in the event of the failure by the defendant to comply with these terms, and such execution may be levied for recovery only of any amount remaining due and payable under these terms. (j) Nothing in the foregoing terms and conditions of settlement shall be taken to extinguish in any way the plaintiff's rights under the Hong Kong Judgment as duly modified by reason of sub-paragraph (i) herein for as much as may still then be owing and payable by the defendant to the plaintiff under these terms of settlement in the event of the Reserve Bank of India refusing within a reasonable period to grant the requisite permission referred to in sub-paragraph (a) herein."
(3.) The sole question that arises for consideration is whether the respondent who has paid Rs. 41,254.12 in terms of Clause 2 (a), can successfully urge that as the appellant had failed to comply with Clause 2 (f) by failing to make available to him or his nominee 4557 rubber tyres the decree could not be executed. The appellant's contention is that the conditions in Clause 2 (f) not having been fulfilled as the respondent had not paid the instalment of Rs. 41,254.12 mentioned in Clause 2 (b) on the fulfilment of which alone he was required to make available the siad tyres, the decree could be executed against the respondent. In other words, according to the appellant the payment of Rs. 41,254.12 np. To the respondent in terms of Clause2 (a) was not the first instalment referred to in Clause 2 (f), as it does not say that the amount was an instalment but was merely a payment. According to this contention the first instalment payable under the decree in fact is that payable under Clause 2 (b) and arises only after the payment mentioned in Cl. 2 (a). We do not think that on the terms of the decree the submission made on behalf of the appellant has any validity. It may be noted that the amount of Rs. 41,254.12 np. Which was to be paid under Clause 2 (a) is equal to the amounts payable as instalments under Clause (b) at six monthly intervals. Reading clauses 2 (a), (b) and (c) together the amount of Rupees 5,44,554.45 has to the paid in equal instalments of Rs. 41,254.12 in six monthly intervals, the first of such instalment being payable immediately to M/s. Sandersons and Morgans after the receipt of the authority from the Reserve Bank in terms of Clause 2 (a. The first instalment referred to in Clause 2 (f), therefore, is the first instalment payable under Clause 2 (a). That this is the understanding of the parties becomes amply clear from the correspondence between M/s. Sandersons and Morgans and the respondent's solicitors M/s. M. G. Poddar. It is not denied that the terms of the compromise were also drafted by M/s. Sandersons and Morgans and agreed to by the respondent's solicitors, and, therefore, the understanding of these solicitors as to the terms of the compromise lends added support to the construction placed by us on the terms of the compromise decree. M/s. Sandersons and Morgans in their letter dated 20-5-1961 write to the Respondent's solicitors as follows:- ".............We have not yet received payment of the sum of Rs. 41,254.12 np in compliance with the Terms of Settlement even though the permission from the Reserve Bank of India Exchange Control Dept. for payment of this amount has long been given. We send herewith two original letters of the 1st November 1960 and 14th January 1961 respectively addressed by our client Mr. Ling to the Mart Ware-house and Co., Hongkong, for unconditional delivery of the tyres. It may, however, be noted that the delivery of the tyres would be made subject to the payment of the above amount in compliance with the Terms of Settlement. Please arrange for payment of the amount "without further delay and then make arrangement for taking delivery of the tyres. If, however, the payment is not immediately made, the godown charges and other expenses, that would be incurred for the maintenance of the tyres, should be borne by your client.";