Whether court can extend time for payment of consideration amount in execution of consent decree?

 In the present case, there was a decree for a sum of Rs.1,04,50,000/-. On the judgment debtor's application, by consent of parties, a concession was granted to the judgment debtor to pay an amount of Rs.90,00,000/- in two instalments of Rs.45,00,000/- each in full and final settlement of the Plaintiff's claim. On failure of such payment, the order provided for the entire decretal amount becoming due and the decree being liable to be executed on that basis. The case clearly comes within the dicta of the Full Bench judgment of our court in the case of Waman Vishwanath. A clause providing for execution of the decree for the entire decretal amount on failure of payment of a concessional amount within a stipulated time is not in the nature of penalty or forfeiture and there is no question of this court relieving the judgment debtor of its consequences. Mr.Cama tries to distinguish the consent order in the present case as an order providing for payment of a larger amount in default of payment of the decretal sum in instalments. The submission is that the original decree was set aside and substituted by a decree for payment of a smaller sum and in default, for payment of the larger sum, i.e. the original decretal sum. The suggestion seems to be that to come within the principle of Waman Vishwanath, the original decree had to be retained and its satisfaction had to be provided in terms of payment in instalments of a lesser sum (i.e. the concessional sum). This is nothing but a matter of semantics. In substance, the original decree is given a go by only on the basis of a concessional payment, failure of such payment resulting into an entitlement to execution of the decree already passed, and that cannot be termed as a penalty or a forfeiture. The application for extension of time is, accordingly, rejected.

Bombay High Court

Sonal Deepak Shah vs Rachna Developers And Marketing ... on 30 August, 2016

Bench: S.C. Gupte

Citation:2016(6) ALLMR 222

Print Page

Whether court can execute decree even if consent decree incorporates matters extraneous to suit?

In Kalyan Das v. Gangabai, AIR 1961 Madh Pfa 67 it has been held that in a suit by transferees of interest of some partners in a partnership property for dissolution of partnership and accounts, the parties arrived at a compromise during the pendency of second appeal against the preliminary decree. The settlement, provided inter alia for the payment by the judgment-debtors of a sum of money by way of profits of a partnership property upto the date of the final decree and also another amount for the entire costs of the suit of the original court as well as of the first appellate Court. The compromise also provided for the transfer of the share of the decree-holders in the assets of the partnership property to the judgment-debtors for a consideration. The whole of the decretal amount was charged on the subject-matter of the suit i.e. the partnership property. It was held that even if a consent decree incorporates matters extraneous to suit the same is executable and it would not be open to the executing court to go behind the decree.

Allahabad High Court

Bishambhar Nath Agarwal vs Kishan Chand And Others on 23 October, 1989

Equivalent citations: AIR 1990 All 65

Bench: N Mithal, G Dube

Print Page

Whether Contempt proceeding can be initiated if consent decree is not complied?

 A compromise, as is well known, is an agreement between the parties with the seal of the Court super-added to it. A consent decree, therefore, is not a decree in its true sense. It would not even attract the principles of res judicata. See Baldevdas Shivlal and Anr. v. Filimistan Distributors (India) P.Ltd. & Prs.7), .

18. There exists a distinction between an undertaking given to a party to the lis and an undertaking given to a Court.

19. An undertaking given to a Court attracts the provisions of the Contempt of Courts Act, whereas an undertaking given to a party to the lis by way of an agreement of settlement or otherwise would not attract the provisions of the said Act.

 Having considered the matter, this Court is of the opinion that in the instant case no proceeding under the Contempt of Courts Act should be initiated. The undertaking given before this Court is qua the party to the lis and not qua the Court and in that view of the matter, no case for initiation of proceedings under the Contempt of Courts Act having been made out. The same view has been taken by two learned Judges of this Court in Urmila Salwan and Ors. v. Kasturi Lal Bhatia, 1999 IV AD (Delhi) 805 and Indian Overseas Bank's case (Supra)

Delhi High Court

Hindustan Motors Ltd. vs Amritpal Singh Nayar And Anr. on 31 May, 2002

Equivalent citations: 100 (2002) DLT 278, 2002 (64) DRJ 394

Bench: S.B. Sinha, C.J.

Print Page