P.N.Goel, J. - (1.) This is a decree-holders appeal against the judgment and decree dated 30-8-1967 passed by the Additional District Judge, Moradabad, reversing the judgment and decree dated 15-5-1966 passed by the Civil Judge, Moradabad in execution case No. 26 of 1965.
(2.) Facts sufficient for the disposal of this appeal are these: Decree-holder brought a suit for recovery of Rs. 5,095/-. Parties entered into a compromise and the suit was decreed in terms of the compromise. The terms of the compromise are as follows: (1) The judgment debtor respondent would pay Rs. 900/- towards costs of the suit to the appellant in Dec., 1955. (2) Out of the amount claimed the respondent would pay to the appellant a sum of Rs. 2,536-13-0. This amount was payable in three equal instalments due in Feb., 1956, Dec., 1956 and in Feb., 1957. (3) If the respondent did not pay any of the three instalments or the costs of the suit indicated above by the dates fixed, the appellant would be entitled to get the entire amount of Rs. 5,095/- in respect of which the suit was filed along with pendente lite and future interest and costs. In that event the appellant would have a right to realise by means of execution.
(3.) The respondent did not pay costs and the instalments indicated above. The appellant, therefore, put in execution application claiming Rs. 5,095/- etc. The respondent filed objection that the condition for realisation of Rs. 5,095/-was in the nature of a penalty and could not be enforced. This objection did not find favour with the executing court, but it found favour with the lower appellate court which relied on the case of Abdul Ghanisab v. Alampalli Nanjunda Setty, AIR 1962 Mys 9 . In this case suit for recovery of Rs. 1,970/- and odd was filed. A consent decree for Rs. 700/- was passed. It was provided in the consent decree that the sum of Rs. 700/- should be paid in two equal instalments payable on 28-5-1954 and 28-11-1954. Then it was provided that if the judgment debtor committed default in making these payments, the decree-holder would be entitled to recover from the judgment debtor the entire sum of money claimed in the plaint. It will thus be seen that the facts of this case are on all fours with the facts of the present case.;