1. The respondents, owners of the land in dispute measuring 16 kanals, 6 marlas, comprised of Khasra Nos. 3 and 4, rectangle No. 77, instituted a suit for its possession alleging that the petitioner was a trespasser and in its occupation without any right. This suit according to the decree-sheet produced on the record was instituted on Mar, 21,1970 though in the main body the date of presentation is stated to be July 15, 1967. The petitioner prior thereto moved an application under S. 18 of the Punjab Security of Land Tenures Act (hereinafter called the Act) for purchase of the said land claiming himself to be its tenant which was opposed by the respondents but allowed by the Assistant Collector Grade I, Fatehabad, vide judgment D/- Nov. 13, 1967, Exhibit JDW/1. In the suit pending in the Civil Court, the parties entered into a compromise whereby the respondents stipulated that Mehru petitioner would become owner of the land in dispute on payment of Rs. 3000/- in four equal instalments payable on Dec. 15, 1972, in addition to the amount ordered to be paid by the Revenue Authority. It is further stated in the decree sheet passed on the basis of the compromise that the order of the Assistant Collector Grade I, permitting the purchase by the petitioner shall have no effect on the rights of the respondents if the instalment amount was not paid on the stipulated date and the suit shall be deemed to have been decreed. It is not disputed that whole of the amount of Rs. 3000/- has been paid by the petitioner but because the two last instalments were not paid within the time stipulated, the respondents instituted execution proceedings to recover possession of the said land in accordance with the terms of the decree which provided that in case the instalments are not paid as scheduled, the plaintiffs shall be entitled to obtain possession of the said land after refunding the amount received. The petitioner opposed the application and pleaded that the decree was without jurisdiction, that the whole of the amount had been paid and that the default was inadvertent and unintentional. The executing Court overruled his objections and ordered the issuance of warrant of possession. Having failed in the appeal before the Senior Sub Judge, he has come up in this revision.
2. The learned counsel for the petitioner assailed the correctness of the impugned order on two grounds. Firstly, that the order having been passed by the Assistant Collector Grade I on Nov. 13, 1967, allowing the petitioner to purchase the land in dispute and the first instalment having been paid, he was deemed to have become owner of the land by virtue of the provisions of S.18(4)(b) of the Act and no civil suit was competent to challenge its validity as provided in S.25 of the Act. Secondly, it was contended that the petitioner being a tenant his ejectment could be sought only in accordance with the provisions of S.9 and a consent order which does not satisfy the requirements of the aforementioned section would be without jurisdiction and unenforceable. None of the two contentions, however, has any merit. The authorities under the Act though may be competent to determine the question of relationship of tenant and landlord between the parties for purpose of S. 18 but the decision is not final and is open to challenge in the civil Courts which only have plenary jurisdiction to determine the question of title. This matter stands concluded by a Division Bench of this Court in Khazan Singh v. Dalip Singh, 1969 Pun LJ 459 wherein it was held that a Civil Court is competent to go into the question that the conditions required to be established before the Assistant Collector can exercise jurisdiction under S. 18 of the Punjab Security of Lands Tenures Act, did or did not exist and that the question of relationship of landlord and tenant which is a question of status of the parties, cannot be finally decided by the Assistant Collector either under the Punjab Security of Land Tenures Act or under the Punjab Tenancy Act. The suit filed by the decree-holder to challenge the order passed under S. 18 in favour of the petitioner on the ground that the petitioner was not in possession of the land in dispute as tenant was, therefore, competent and the Court could hold the said order as void and without jurisdiction if it was found that the petitioner was not holding the land in dispute as tenant. The second contention as well has to be overruled on the same reasoning because unless the relationship of landlord and tenant is admitted between the parties the provisions of S.9 of the Act would not come into play. In all the three decisions of the Supreme Court in Smt. Nai Bahu v. Lala Ram Narayan, AIR 1978 SC 22, Chandrika Misir v. Bhaiyalal, AIR 1973 Sc 2391 and Smt. Kaushalya Devi v. K. L. Bansal, AIR 1970 SC 838, relied upon by the learned counsel for the petitioner, the relationship of landlord and tenant was admitted between the parties and proceedings for ejectment had been instituted before the Rent Controller. On these facts, it was ruled that the order of ejectment passed on the basis of relationship between the parties would not be binding on the tenant unless it was show that any ground for ejectment as envisaged by law was available and proved on the record or acceded to by the tenant. In the present case, the suit had been filed before the Civil Court for possession of the land in dispute on the basis of title alleging the petitioner to be a trespasser. The decree suffered by the petitioner for possession thus did not offend any provision of law which could render it void or without jurisdiction. Both the contentions raised by the learned counsel, therefore, have to be overruled.
3. However, the petitioner can be relieved of the rigorous of consent decree on another ground. It is well established that a consent decree is nothing but a contract between the parties with a seal of the Court superimposed thereon and as such can be avoided on any ground on which the contract can be avoided under the provisions of the Contract Act. If the contract or consent decree passed thereon contains a forfeiture or penalty clause, the court can give relief to the judgment debtor by virtue of the provisions of s. 74 of the said Act. Reference in this connection may profitably be made to a Division Bench decision of this Court in Chattar Singh v. Khetu, 1966 Cur LJ 665 which approved the dictum laid down in the earlier case, Jwala Ram v. Mathra Dass, AIR 1931 Lah 696 in the following terms:
'Where a decree is passed as a result of an agreement between the parties it does not stand on a higher footing than the agreement which preceded it, and therefore the Court has the power to relieve the defaulting party from the consequences of the default; but the Court does not possess unrestricted power in the matter inasmuch as it cannot interfere with the effect of default if as a result thereof the decree holder seeks merely to take away a concession which he had given to the judgment-debtor. If, on the other hand, as a result of the default, the decree-holder is attempting to realize more than was really due to him, in other words, if he is enforcing a penalty then the Court is entitled to step in and give relief to the judgment-debtor against the forfeiture'
In the present case, the petitioner had successfully secured the order under S. 18 of the Act to acquire proprietary rights in the land in dispute and was deemed to have become its owner on the deposit of first instalment of the price determined by the Assistant Collector. By the time the compromise had been entered into, he had deposited the amount of six out of the total ten instalments. The respondents were not entitled to claim anything more than the priced fixed by the Assistant Collector but in the compromise, the petitioner agreed to pay Rs. 3,000/- more over and above the said amount. So, the respondent was not entitled to the possession of the land in dispute unless the Civil Court had found that there was no relationship of landlord and tenant between the parties. By the compromise also, the petitioner never conceded that he was not the tenant of the land in dispute or that the order passed by the Revenue Authorities was void and without jurisdiction. A clause in the compromise entitled the decree-holder to recover possession of the land in dispute in case of non-payment of the instalments at the stipulated time was, therefore, in the nature of penalty and forfeiture clause and as such the executing Court was fully competent to give relief to the petitioner against the aforementioned clause. The time of the payment of the instalments could in no way in the circumstances of the case be said as the essence of the contract and whole of the amount as agreed to between the parties under the compromise having been paid the tenant had substantially complied with the terms of the compromise. The clause entitling the decree-holder to recover possession in case of non-payment of the instalments on the date fixed being in the nature of penalty clause is held to be void and not binding on the petitioner.
4. Relief can be given to the petitioner by extending the time fixed for the payment of the instalments under S. 148 of the Civil P. C. which enable the court to enlarge from time to time any period fixed or granted by the Court for doing any act prescribed or allowed by the Code. Though the Supreme Court in Hukumchand v. Bansilal, Air 1968 Sc 86 held that the time fixed for payment of the mortgage money with the consent of the parties could not be extended by the Court without their consent and the provisions of S. 148, C.P.C., would not apply in such circumstances, but this case was distinguished in a Division Bench decision of the Calcutta High Court in Jadabendra Nath Mishra v. Smt. Manorama Debya, AIR 1970 Cal 199 on the ground that were there is no statutory provision under which time is fixed, it can be extended to relieve the party of the forfeiture which was to result on default of the payment within time. In Jadabendra Nath Mishra's case (supra) a compromise was entered into between the parties which provided that if certain amount was paid within certain time, ex parte decree was to be set aside and the suit restored to the file but if payment was not made within the time specified, ex parte decree would stand confirmed. The said clause was held a penal clause and the judgment-debtor was relieved of its rigorous by extending the time of deposit of the amount settled under S. 148 read with S. 141 of the C.P.C. On similar considerations, the judgment-debtor was relieved of the penal clause by the Bombay High Court in Marketing and Advertising Associates Pvt. Ltd. v. Telerad Private Ltd., AIR 1969 Bom 323. Although a discordant note has been struck in the decisions of some other High Courts but the view expressed in Jadabendra Nath Mishra and Marketing and Advertising Associate's cases (supra) being more in consonance with the justice and equity, I prefer to follow the same and hold that the court is empowered to relieve the judgment-debtor of the rigours of penal clause which provides the forfeiture of property and other valuable rights in case of default of payment according to the time stipulated in the consent decree. In the present case the amount of the 3rd and 4th instalments was deposited within fifteen days after the stipulated time. The time for the said instalments is accordingly extended and the deposit made shall be deemed to have been made within the stipulated time.
5. For the reasons recorded above, this revision is allowed, the impugned order set aside and the execution application dismissed. However, in the circumstances of the case, the parties are left to bear their own costs.
6. Revision allowed.