1. The judgment debtors in a compromise decree for maintenance are the appellants before as.
2. The decree provided that the judgment. debtors should pay maintenance to the decreeholder at the rate of Rs. 6 a month and in case of default of payment of the allowance for six consecutive months the judgment-debtors shall be liable to pay maintenance at Rs. 12 a month. The judgment-debtors defaulted payment for six months consecutively and the decree, holder assigned his decree to opposite parties 1 and 2 (respondents). When the decree was put in execution, the judgment-debtors (appellants) raised several objections one of which has been debated before as. The contention of the judgment-debtors is that the stipulation embodied in the compromise decree, to the effect that the judgment-debtors shall pay double the monthly maintenance allowance in case of default for six consecutive months, is in the nature of a penal class and cannot be enforced in execution.
3. The Courts below overruled the plea of the judgment-debtors on the ground that an executing Court cannot go behind the decree and is bound to give effect to whatever terms are embodied in the decree. Reliance was placed for this view on the case reported in Jitendra Nath v. Jasoda, A. I. R. (13) 1926 pat. 122 : (92 I. C. 617) where a Division Bench of the Patna High Court held that the doctrine of penalty is not applicable to stipulations contained in decrees whether passed on compromise or contest.. Their Lordships who decided this case relied on a case of the Bombay High Court reported in Shirekuli Timappa v. Mahablya, 10 Bom. 435. The principles underlying these decisions is that Schedule 4, Contract Act, which provides for relief against penalty does not apply to decrees which embody and express the adjudication of a Court. It was held that the application of the principle of contract to execution of decrees would introduce uncertainty and confusion and that, therefore, the application of the equitable principle should be confined only to cases where the parties have not gone beyond the stage of contract. The case reported in Shirekuli Timappa v. Mahablya, 10 Bom. 435 arose under the old Civil Procedure Code and was later expressly dissented from by a Full Bench of that Court in Krishna Bhai v. Harigovind. 31 Bom. 15 : (9 Bom. L. R. 813 F. B.). The question referred to the Pull Bench was whether when the plaintiff is seeking to enforce by original suit a right to forfeiture contained in a consent decree whereby the status of landlord end tenant is established between the plaintiff and the defendant, the Court, in the exercise of its equitable jurisdication, is precluded from granting such relief against forfeiture as it might have granted had the status arisen from contract or custom, and this question was answered in the negative. The principle has been laid down as early as in Wentworth v. Bullen, (1829) 9 B & C. 840 at p. 850 : (9 L. J. K. B. 33) as follows ; and has since been repeatedly affirmed :
'A contract of the parties is not the less a contract, and subject to the incidents of a contract, because there is superadded the command of a Judge.'
4. Turning now to the language of the Civil Procedure Code we find that Order 23, Rule 3 lays down as to how the compromise of a suit is to be recorded. It says :
'Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise .... the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance there with so far as as it relates to the suit.'
When a compromise is filed by the parties to a suit during the pendency of the suit, the Court merely records the compromise and does not look into the legality of the terms embodied therein. The agreement between the parties may be voidable at the option of one of the parties; or the decree itself may be set aside by a suit at the instance of one of the parties on the ground that the compromise was brought about by undue influence or fraud. It cannot therefore claim the sanctity of a judgment followed by a decree of the Court. A compromise decree accordingly merely embodied the agreement arrived at between the parties and is no more than any other contract between the parties. That this is the view taken by all the Hight Courts in India, including the Patna High Court, is now beyond doubt.
5. In Mt. Nand Rani v. Durga Das, 2 Pat. 306 : (A. I. R. (11) 1924 Pat. 387) the question whether an executing Court had the power to extend the time allowed by agreement and embodied in a decree of the Court, was directly raised, and Mullich and Bucknill JJ. held following Kandarpa Nag v. Banwari Lal Nag, 33 C. L. J. 244 : (A. I. R. (8) 1921 Cal. 356), that although a contract may have ripened into a decree the Court will not be precluded from giving relief which it would have been competent to give if it had been called upon to adjudicate upon a contract in the first instance. Unfortunately the attention of their Lordships who decided the case reported in Jitendra Nath v. Jasoda, A. I. R. (13) 1926 Pat. 122 : (92 I. C. 617) was not invited to the earlier case in Mt. Nand Rani v. Durga Das, 2 Pat. 906 : (A. I. R. (11) 1924 Pat 387). Subsequent to the decision in that case of 1926, there have been a series of decisions of the same High Court, in which not only has that decision not been followed but a contrary view has been expressly adopted. Our attention has been drawn to the cases reported in Sasadhar Ganguli v, Raghab Singh, A. I. R. (17) 1930 Pat, 234:(125 I.C. 123); Saheb Lal Bhagat v. Mohd. Ishaque, A.I.R. (22) 1935 Pat. 59 : (154 I. C, 393); Jahuri Lal v. Kandhai Lal, A. I.R. (22) 1935 Pat. 123 : (156 I. C 302) and Khetro Swain v. Padmnaabha Singh Deo. A. I.R. (30) 1943 Pat. 403 : (211 I. C. 41). In the last-mentioned case, the latest Bombay ease reported in Burjorji Shapurjiv, Madhavlal Jesingbhai, 58 Bom. 610 : (A. I. R. (21) 1934 Bom. 370), which is based on the Full Bench view of that High Court in Krishna Bhai v. Harigovind, 31 Bom. 15: (9 Bom. L. R. 813 F. B.), was followed. Mr. Pal, appearing for the judgment-debtors has also cited before us the Full Bench decisions of the Allahabad High Court and the Lahore High Court reported in Mohiuddin v. Kashmiro Bibi, 55 ALL. 334 (A. I. R. (20) 1933 all. 252 F. B.) and Prem Parkash v. Mohanalal, A. I. R. (30) 1948 Lah. 268: (I.L.R. (1944) Lab. 379 F. B.). The view of the Madras High Court is also in conflict with the decision in Jitendra Nath v. Jasoda, A. I. R. (13) 1926 Pat. 122:(92 I. C. 617). See Peda Linga Reddi v. Hanumayya, 37 I. C. 764:(A. I. R. (5) 1918 Mad. 1307); Jaya Rao v. Venkatanarayana Ghetty, A. I. R. (12) 1925 Mad. 264:(80 I. C. 925); Subbayya v. Peddayya, A. I. R. (24) 1937 Mad, 234 : (169 I. C. 345).
6. On a review of the various authorities, we are satisfied that the consensus of opinion in all the High Courts is that an executing Court has, got the power to apply the equitable principle embodied inSection 74, Contract Act, and relieve one of the parties to the contract against any term which operates as a penalty although the contract may have been embodied in a decree of the Court. We have therefore to hold that the authority of the decision in Jitendra Nath v. Jasodas A. I. R. (13) 1926 pat 122:(92 I. C. 617) has been considerably weakened, if not expressly overruled and cannot be regarded as sound law. The decision of the Courts below-based on the authority of this case-must accordingly be overruled and the objection of the judgment debtors upheld.
7. We accordingly direct that the decree holder shall be entitled to execute his decree and realize maintenance allowance, only at the rate of Rs. 6 a month and that penal clause providing for payment of double that amount in the event of non-payment for six consecutive months shall not be enforced. This appeal succeeds but as there is no appearance for the opposite party respondent there shall be no order as to costs.
8. I agree.