1 cra304.11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Civil Revision Application No. 304 of 2011 M/s. Smith Properties Pvt. Ltd. ... Applicant v/s. Smt. Tulsidevi Sharma & ors. ... Respondents Mr. G.S.Godbole i/b. Neel Helekar for the applicant. Mr. Bharat Joshi i/b. Ashutosh Shukla for respondent no. 1. CORAM:- B.R. GAVAI, J DATED :- APRIL 20, 2011. P.C. By way of present revision application, the applicant challenges the order dated 15th February, 2011 vide which the Chamber Summons No. 1002/2010 in Execution Application No. 495/2010 in disposed of Short Cause Suit No. 787/2009 filed by the present applicant, who was defendant no. 18 in the original suit came to be rejected. 2. In a suit filed by the respondent no. 1 against the petitioner and the respondents 2-18, wherein the present applicant was defendant no. 18, the matter came to be amicably settled and consent terms were filed. A decree came to be passed in terms of the consent terms. The plaintiff filed the 2 cra304.11.sxw aforesaid execution proceedings for execution of the decree passed in terms of the ‘consent terms’. In the said proceedings the Chamber Summons as aforesaid came to be filed by the present petitioner. The said Chamber Summons is rejected. Hence, the present revision application. 3. Shri Godbole, the learned counsel appearing on behalf of applicant fairly states that, though the applicants have raised point in the chamber summons, to the effect that the Court which passed a decree had no pecuniary jurisdiction, the applicants are not pressing the said point in the revision application and are only challenging the impugned order to the extent that the impugned order permits the execution proceedings, to travel beyond the scope of the decree. 4. Shri Godbole, learned Counsel submits that in the decree, it is specifically stated that unless the entire powai property is sold, the plaintiff would not be entitled to an amount of Rs. 2 crores. He submits that entire property is not sold and only part of the property is sold. It is, therefore, submitted that execution application was totally premature. 5. The learned Counsel relies on the Judgment of the Apex Court in the 3 cra304.11.sxw case of Sunder Dass v/s. Ram Prakash reported in (1977) 2 SCC 662 and V. Ramaswami Aiyengar & ors. v/s. T.N.V. Kailasa Thevar reported in AIR 1951 SC 189 in support of his case. 6. Shri Bharat Joshi , learned counsel submits that no case is made out for interference. He submits that petitioners having received huge amount of Rs. 76 crores in pursuance to the consent terms, are for no reason delaying the payment of legitimate dues of the respondent no. 1 who is a lady of 84 years old. 7. Nodoubt, that it is the settled principle of law that executing Court cannot travel beyond the decree. However, in the facts of the present case, the judgments which are relied by the learned Counsel for the applicant would rather support the case of the respondent no.1-plaintiff, than the case of the applicant. 8. For appreciating rival contentions, it would be relevant to refer to Paragraph 2 of the consent terms, around which the entire controversy would revolve; “2. It is now agreed, confirmed and declared by the 4 cra304.11.sxw Plaintiff and the Defendant Nos. 1 to 17 herein, that they have amicably settled all their disputes and differences with Defendant Nos. 1 to 18 herein and hereby unconditionally withdraw all their allegations made against them. Agreed, declared, confirmed and ordered and decreed that Defendant No. 18 shall pay to the Plaintiff herein an amount of Rs. 2 Crores free of Income Tax, as the Income Tax on the said amount is agreed and undertaken to be paid by the Defendant No. 18, to the Income Tax Authority on sale of the said Powai Land by Defendant No. 18 herein to the Larsen & Tourbo Limited. In the event of the Plaintiff dies before receiving the said amount of Rs. 2 Crores, the said amount agreed and undertaken to be paid to only Shri Haridas Sharma, first grand son of the plaintiff. The plaintiff or Shri Haridas Sharma shall not be liable to give any other proof or document for the said amount.” (underlined supplied) 9. It can thus clearly be seen that from the underlined portion it is clear that the defendant no. 18 has agreed to pay to the plaintiff an amount of Rs. 2 crores free of income-tax. The further part of the sentence provides that the income-tax on the said amount is undertaken to be paid by the defendant no. 18 to the Income-tax authority on the sale of said powai land by defendant no. 18 to the Larson and Tourbo Ltd. It can thus clearly be seen that the plain reading of the said sentence would reveal that payment of Rs. 2 crores to the plaintiff free of income-tax is not dependent upon any eventuality. Insofar as the reference to the 5 cra304.11.sxw defendant no. 18 selling the said powai land to Larson & Tourbo Ltd. is concerned, the same is only relevant as to why the amount of Rs. 2 crores is being paid to the plaintiff ‘free of income-tax’. It provides that since the income-tax will be paid by the defendant no. 18, to the Income-tax authorities on the sale of the said powai land to the Larson and Tourbo, the payment made to the plaintiff is free of income tax. By no stretch of imagination it can be said that payment of Rs. 2 crores is made dependent upon the sale of powai land by defendant no. 18 to Larson and Tourbo. It is a first principal of interpretation, that a literal meaning has to be given to the words used. Upon giving the plain and literal meaning to the words used in the said consent terms, no other interpretation except the one which has been placed by this Court is possible, in my respectful view. 10. If the interpretation which is sought to be placed by the learned counsel for the applicant is to be accepted, then some words which are not used in the said sentence, will have to be read, in the said sentence, which in my view is not permissible in law. 11. I have already stated hereinabove that the judgments of the Apex Court on which the learned Counsel relies, have reiterated the settled 6 cra304.11.sxw position of law that the Executing Court cannot go beyond the decree. In view of the settled legal position as enumerated in those judgments, no material irregularity could be noticed in the approach adopted by the learned Executing Court to warrant interference. Rejected. 12. At this stage, Shri Godbole, learned Counsel requests for stay to the execution proceedings for a period of eight weeks. Shri Joshi learned Counsel appearing on behalf of respondent no. 2 vehemently opposes the prayer. 13. In ordinary course, this Court would have considered the request made by the applicants. However, it appears that the present applicants having persuaded the old lady of 84 years, to enter into the consent terms with them and having promised her to make a payment of Rs. 2 crores, somehow on some hyper technical grounds and since the applicant appears to be financially resourced private limited company, are making every attempt to protract the legitimate claim of respondent no. 1. In that view of the matter, I do not find that equity demands any protection in favour of the present petitioners. (B.R. GAVAI, J)