' By the above-mentioned application the petitioner/decree-holder, on the plea that the judgment-debtor/the respondent has failed to pay any instalments within the time agreed as per application made under Order XXIII, rule 3, C.P.C. In terms whereof the Court passed decree in Suit No, 361 of 1975, contended that she has become entitled to profits/interest/damages amounting to Rs, 2,24,000 calculated at 16% per annum and accordingly has prayed that the property bearing House No, 15-A at Muhammad Ali Housing Society, Karachi be ordered to be sold and Rs, 2,24,000 as profits/interest damages be paid to her in satisfaction of the decree.
2. In support of the application the learned counsel made reference to the terms of the application made under Order XXIII, rule 3, C.P.C. Whereby the parties compromised the suit. The said terms (consent decree) inter alia provided : Cl. 2. "That the defendants have agreed to pay and the plaintiff has agreed to accept in full and final settlement of her shares in the totality of the estate of the said porosities, the sum of Rs, 2,00,000 (Rs, Two lacs only) in full and final satisfaction. The said sum shall be paid by instalments.
The first instalment of Rs, 1,00,000 (Rupees one lac only) will be paid on or before 30th April, 1976.
The balance of Rs,1,00,000 (one lac only) would be paid by monthly instalments of Rs, 10,000 (Rupees ten thousand only) per month. The second instalment as such will be payable on or before 30th June, 1976. The successive instalments thereafter shall be paid in each succeeding month on or before the end of each month, default in payment of any single instalment will entail payment of the entire balance then remaining due and payable.
CI.
3. The payment of the balance decretal amount i,e, Rs, 1,00,000 (One lac only) shall be secured by the defendants by a bank guarantee of a scheduled bank for Rs, 1,00,000 (one lac only) in favour of the plaintiffs banker and such guarantee shall be without recourse to the defendants.
That the said bank guarantee shall be furnished by the defendants concurrently with the tender of the first instalment of Rs, 1,00,000 (Rs, one lac only). That upon payment of the instalment herein agreed the bank guarantee shall automatically stand discharged. The plaintiff will in exchange for payment of instalment issue receipts of payments.
Cl. 4. That all the liabilities of the deceased appertaining to the estate and capable of appointment amongst the parties hereto including estate duty or otherwise shall be borne by the two defendants to the exclusion of the plaintiff. The plaintiff simultaneously with the payment of the first instalment of Rs, 1,00,000 (one lac only) shall hand over the defendants the vacant peaceful physical possession of the residential property viz. 15-A, Muhammad Ali Co-operative Housing Society Ltd. Karachi with its fixtures and fittings and the movable properties.
Cl:
8. That if the defendants fail to pay the first instalment of Rs, 1,00,000 (one lac only) on or before 30th April, 1976 and to furnish the said bank guarantee alongwith the tender of the first instalment the plaintiff shall be entitled to recover the decretal amount of Rs, 2,00,000 (two lacs only) in lump sum and the plaintiff shall be bound to hand over vacant possession of the residential property presently in her possession in terms set out and described in para. 4 hereinabove simultaneously on receipt of the decretal amount."
3. The learned counsel for the decree-holder contended that the compromise decree is in the nature of a contract. Reliance was placed by the learned counsel on the case reported as AIR 1930 Lah. 937 and AIR 1960 Cal. 506 in support of the above plea.
' Proposition thus advanced by the learned counsel for the applicants is well-settled and has not been disputed by the learned counsel for the respondents/judgment-debtors to the extent it goes.
4. Mr. Mohsin Tayyabali, however further relied upon the case reported as Muthukrishna Raja and another v. Viswa linga Kadaverayar and others (1) and argued that the plaintiff/decree holder is entitled to payment of interest on amount which has not been paid in terms of the compromise decree. In order to appreciate the arguments it would be relevant to refer to the facts of the said case. In that case a decree was passed in terms of the compromise between the parties providing that certain sum with interest at 6% per annum from the date of the plaint to date of compromise shall be paid within six months and that in case of default execution was to be taken against the properties and against the person of the defendant and the amount be recovered. There was no provision that after expiry of the six months as mentioned in the compromise, the amount shall carry interest. On the facts of the said case, the Court held that this was a case to which the rule that a compromise decree partakes of the nature of the contract was applicable and accordingly it was held that under the said decree post diem interest could be claimed by the plaintiffs at the rate of 6% per annum which was the fact fixed for the period between the date of the plaint and the date of the decree. It was further observed that it made no difference that no provision was made for interest between the date of the decree and the date when the amount was payable.
5. Mr. Nasim Farooqui, the learned Advocate respondent/judgment debtor however contended that the decree passed in terms of the compromise did not provide for payment of any interest/damages/profits and that as such execution Court could not go behind the decree. He also contended that there was no delay on the part of the respondents' as the plaintiff was avoiding to perform her part of the agreed terms according to which she was bound to hand over vacant possession of the residential property simultaneously on receipt of the decretal amount.
6. I have considered the contentions raised by the learned counsel for the parties, and find that the terms of the compromise decree expressly provided remedy in case of default in payment of any of the instatments a would be seen from the reading of clause 2 of the compromise/decree re produced above. In view of the remedy thus expressly agreed for the
(3) AIR 1940 Mad. 893 ' alleged default and the parties have deliberately omitted to provide for payment of interest in case of non-payment of instalments in time, I am afraid the Court cannot be expected to modify the compromise decree which according to Mr. Mohsin Tayabali, is in the nature of a contract. The case reported as AIR 1940 Mad. 893 cited in support of the plea that plaintiff is entitled to grant of amount by way of profits/damages/ interest is of no assistance as the facts of the said case are distinguishable. In the Madras case the parties contemplated payment of interest which provision has been expressly omitted in the compromise application drafted by two senior Advocates.
' Moreover, Mr. Mohsin Tayabali admitted that at no time the plaintiff/decree-holder served any notice upon the defendants/ judgment debtors notifying her intention to charge interest in case payment of instalments was delayed.
7. Mr. Nasim Farooqui has produced in the Court the original pay order, dated 20th February, 1984 for Rs, 2,00,000 in order to support the plea raised by the defendants/judgment-debtors that they were ready to pay the amount due to the plaintiff who according to them, was avoiding to perform her part of the agreement of delivery of possession of the property. It is contended that this condition is required to be performed simultaneously by decree-holder with the receipt of the decretal amount from the judgment-debtors. The photo copy of said pay order has been retained on the record. Mr. Mohsin Tayabali however argued that this is a matter to be decided in the execution application which judgment-debtors/defendants have separately filed.
8. I may also with advantage refer here to the case reported as Syed Riaz Ahmed and another v.
Dayal Singh College Trust Society (1) wherein the honourable Supreme Court observed : "According to well-settled principles of law the executing Court cannot go behind the decree."
' The above principle of law laid down by the honourable Supreme Court is fully applicable to the facts of this case and finding that the executing Court cannot go behind the decree, the plaintiff/decree-holder cannot in these proceedings claim profits/damages/interest.
9. I may here finally refer with advantage to the case of Naresh Chandra Bose v. Krishna Bhabini Dassi (2) wherein while interpreting a decree passed granting maintenance and wherein no mention was made that the plaintiff was entitled to interest on the sum decreed, the learned High Court placing reliance upon the case of Seth Gokuldas Gopaldas v. Murli and Zalim (3) it was observed that an execution Court is not entitled to go behind the decree and to vary it in execution proceedings. It was further observed that the right of a person standing in the position of the decree-holder to recover damages is to pursue a proper remedy and that the executing Court had no such power. The decree holder may bring a suit for damages for detention of decretal amount.
10. For the reasons discussed above I find no force in this application which is dismissed.
(1) 1972 SCM R 237 (2) AIR 1926 Cal. 505
(3) I L R 3.Cal. 602 (P C)
11. Before concluding I may clarify that any observation above as to the right of the judgment- debtors to claim simultaneous performance of obligations for alleged failure by any of the parties to perform his/her/their part of about the availability of other remedy for recovery of damages/ interest/profits/are tentative in nature and would not prejudice the rights of the parties to urge and take such pleas as may be available to them before the relevant Court to be decided on their own merits.