Click here to read the full judgement Deepa Bhargava and Anr. Vs. Mahesh Bhargava and Ors.
Deepa Bhargava and Anr. Vs. Mahesh Bhargava and Ors.
Civil Procedure Code, 1908 Order XXXIII Rule 3 – Contract Act, 1872 – Section 74 – Powers of executing court – Consent decree stipulation interest @24%
Held:
An executing court, it is well known, cannot go behind the decree. It has no jurisdiction to modify a decree. It must execute the decree as it is. A default clause contained in a compromise decree even otherwise would not be considered to be penal in nature so as to attract the provisions of Section 74 of the Indian Contract Act. (Para 11)
Even assuming that the term stipulating payment of interest in the event the entire amount was not paid within a period of six months is penal in nature, the Executing Court was bound by the terms of the decree. (Para 13)
the entire matter becomes clear after reading the judgement of the
Madhya Pradesh High Court
Smt. Laxmi Bhargwa And Anr. vs Dr. Mahesh Bhargwa And Ors. on 29 September, 2006
Deepa Bhargava sister Appellants Mahesh brother Respondents consent decree can be varied by the executing court is the question involved in this appeal dispute property inherited from mother A compromise petition in terms of Order XXIII Rule 3 of the Code of Civil Procedure, 1908 was filed which was accepted by the Court. An objection was also filed by them under Section 47 of the Code before the Executing Court in 2002. The said objection petition was rejected. A Civil Revision Application was filed there against, inter alia, contending that the respondents were not liable to pay interest at the rate of 18% per annum.
Click here to read the full judgement Madhya Pradesh High Court
Smt. Laxmi Bhargwa And Anr. vs Dr. Mahesh Bhargwa And Ors. on 29 September, 2006
M/S. Brakewel Automotive ... vs P.R. Selvam Alagappan on 21 March, 2017
19. It is no longer res integra that an Executing Court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus inexecutable. An erroneous decree cannot be equaled with one which is a nullity. There are no intervening developments as well as to render the decree inexecutable.
The objections to the execution petition as well as to the application under Section 47 CPC filed by the respondent do not either disclose any substantial defence to the decree or testify the same to be suffering from any jurisdictional infirmity or invalidity.
Click here to read the full judgement M/S. Brakewel Automotive ... vs P.R. Selvam Alagappan on 21 March, 2017
Smt. Nandarani Mazumdar vs Indian Airlines And Ors. on 1 September, 1983
the hon'ble judge has ordered "(2) that a separate suit for this claim was not maintainable in view of Section 47 of the CPC."
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