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TMI Blog1996 (5) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... is stated that as per the memorandum of understanding on 25-8-1994 time was extended till 9-9-1994. The CLB disposed of both the petitions in terms of the deed of compromise on 31 -10-1994. According to the learned counsel for the appellants, the respondents failed to comply with the terms of settlement by not making the payment of Rs. 12 lakhs within the stipulated time and made an application under section 634A on 28-4-1995 for enforcement of the order dated 31-10-1994. According to the appellants, the respondents neither filed draft sale deed nor got clearance from the income-tax authorities and did not make the payment of Rs. 12 lakhs nor transferred the shares and 'no objection certificate' from the bank was also not obtained. The CLB on 19-12-1995 after considering the objections of both the parties, directed that the amount of Rs. 12 lakhs shall be paid along with interest at the rate of 18 per cent till the date of actual remittance which shall be deposited in Escrow account with the State Bank of Bikaner and Jaipur. The vacant possession of land and building as per compromise terms shall be given within one month from the date of deposit of the amount. 3. The above or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t exceeded its jurisdiction as it has inherent powers under rule 44 of the Company Law Board Regulations, 1991. The interest of Rs. 2,09,400 has been deposited on 20-1-1996. 4. In this matter various allegations and counter-allegations were made which I need not consider at this stage. The only point is to be seen as to whether the CLB under the proceedings under section 634A could extend the time for implementation of the order passed by it on 31-10-1994. 5. It is very clear proposition of law that in the execution proceedings the executing court cannot modify a decree. In the case of Hukumchand v. Bansilal AIR 1968 SC 86 by consent of the parties the executing court dismissed the application of the judgment-debtor under Order 21, Rule 90 of the Code of Civil Procedure, 1908, to set aside the sale held under a mortgage decree and allowed him time to pay the decretal amount and the auction-purchaser's commission. But the judgment-debtor failed to de- posit the amount within time prayed for extension of time. As this prayer was opposed by the decree-holder and the auction-purchaser the Court dismissed the prayer and confirmed the sale. It was observed by the Apex Court t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be paid by P.K. Baj and received by P.C. Sanghi on behalf of the company within a period of three months from the date of compromise as a result of which the possession of factory, land and building was to be taken along with maruti car. Besides this, there were other conditions and P.C. Sanghi was to ensure that the properties are free from all encumbrances and he shall take all necessary steps to get the property registered in the name of Shri P.K. Baj or his nominee including NOC from the Income-tax Department if so required and clearance from the bank SBBJ SMS Highway Jaipur with respect to the bank guarantee given by Shri P.K. Baj and his father Shri P.C. Baj. The civil suits pending in any Court or authority filed by either party, their friends or relatives were to be withdrawn. P.K. Baj was to make the payment of Rs. 12 lakhs in consider-ation of transfer of 3,015 shares belonging to Shri P.K. Baj and Sudha Baj in favour of P.C. Sanghi or his nominee in consideration of transfer of property, i.e., land measuring 2000 sq. metres, building, F-45 Malviya Industrial Area, Jaipur and discharge receipt was to be issued. 7. The amount of Rs. 12 lakhs was not paid within 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the pendency of the respon-dent's second appeal before the High Court the parties entered into a compromise with the leave of the Court whereby the appellants agreed to pay a certain amount to the respondents within a stipulated time in full and final settlement of the decree, a contention was raised that the time was essence of the agreement. It was observed that where the application under Order 21 rule 9 is dismissed, there is a statutory compulsion to confirm the sale and, therefore, in that event postponement and further postponement of the confirmation of the sale can only be by the consent of the parties themselves. A distinction was drawn between a case where there was statutory compulsion and a case where there was no statutory compulsion. If the contract between the parties has merged in the order of the Court, the Court's freedom to act to further the ends of justice would surely not stand curtailed. 10. In the present matter, the CLB while exercising the powers of the executing court found that modalities were not prescribed and even the time was not the essence of the compromise. The appellant was compen-sated with the interest for the delay caused. The repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulded to subserve substantial justice. Therefore, technicalities would not stand in the way to subserve substantive justice. Take a case where the decree is transferred for execution to a transferee executing court, then certainly the transferee court is not the original court and execution it is not the 'same court' within the meaning of section 28. But when an application has been made in the Court, in which the original suit was filed, and the execution is being proceeded with, then certainly an application under section 28 is maintainable in the same Court. According to the judgment of the Supreme Court, even the power to extend the time could be exercised by the appellate court. In the present case, therefore, the trial court has the jurisdiction to pass the decree as well as for execution and if this judgment is taken into consideration then the application made by the defendant would be considered the application for extension of time in the decree itself for which the Court has ample powers. 13. In these circumstances, I feel that it would not be proper to interfere with the discretion which has been exercised by the CLB in extending the time. The amount has already bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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