Lachiram Dagduram Marwadi Vs. Jana Yesu Mang - Court Judgment
|Case Number||Second Appeal No. 563 of 1913|
|Judge||Basil Scott, Kt., C.J and ;Beaman, J.|
|Reported in||AIR1914Bom127; (1914)16BOMLR668|
|Appellant||Lachiram Dagduram Marwadi|
|Respondent||Jana Yesu Mang|
.....two instalments-the claim cannot be relieved against by the court but be varied only by consent.;a consent decree provided for payment of the sum found due in certain fixed instalments. it was alea provided that on failure to pay two instalments, the plaintiff was at liberty to recover possession of certain lands. a default having occurred in payment, the plaintiff applied to recover possession. the lower courts deoliued to assist the plaintiff in enforcing the penalty clause. the plaintiff having appealed : ;that there having been a default in the payment of instalments as provided in the decree, the plaintiff was entitled to take possession of the property.;a consent decree can only be varied by consent.;the ratio in krishnabai v. hari and balambhat v. vinayak is in applicable where..........proper time the plaintiff is to take the property into his possession by right of ownership. the learned judge of the lower appellate court has held that the first two instalments were paid too late, but were accepted, and that subsequent two instalments have not been paid in time. there has been therefore a default with regard to the last two instalments which entitled the plaintiff to take possession of the property. the case is very similar to bapu v. vithal (1), which we recently decided following the decision of mr. justice north in australasian automatic weighing machine co. v. walter  w.n. 170., where it was held that a consent decree can only be varied by consent. there is no consent here and as pointed out by this court in saguna v. sadashiv i.l.r. (1902) 26 bom. 710; 4.....
Basil Scott, Kt., C.J.
1. In this case we think that the learned Judge was wrong in not enforcing the decree according to its terms. The decree is quite explicit. The first instalment is to be paid on or before the 1st of March 1908. Thereafter the defendant is to go on paying to the plaintiff an instalment every year. If the defendant fail to pay any two instalments at the proper time the plaintiff is to take the property into his possession by right of ownership. The learned Judge of the lower appellate Court has held that the first two instalments were paid too late, but were accepted, and that subsequent two instalments have not been paid in time. There has been therefore a default with regard to the last two instalments which entitled the plaintiff to take possession of the property. The case is very similar to Bapu v. Vithal (1), which we recently decided following the decision of Mr. Justice North in Australasian Automatic Weighing Machine Co. v. Walter  W.N. 170., where it was held that a consent decree can only be varied by consent. There is no consent here and as pointed out by this Court in Saguna v. Sadashiv I.L.R. (1902) 26 Bom. 710; 4 Bom. L.R. 527. it is obvious that no modification of a decree can be allowed in execution upon grounds not recognised in the decree itself as giving a right of such modification. The decisions cited by the learned District Judge, in Krishnabai v. Hari Govindi I.L.R. (1906) 31 Bom. 15; 8 Bom L. It. 813. and Balambhat v. Vinayak Ganpatrav I.L.R. (1911) 35 Bom 239 are inapplicable where the relation of landlord and tenant is not created by the decree. We, therefore, set aside the decree of the lower appellate Court and remand the case in order that the decree may be executed according to its terms. The respondents must pay the costs throughout.