Sharfuddin, J.:— The appellant who was a decree-holder instituted a suit for recovery of Rs. 7,018-6-6 against the defendant on a bahi khata. Before the disposal of the suit a compromise was effected between the parties and a petition was put in embodying the terms of the compromise. It was agreed that the defendant should pay to the plaintiff the sum of Rs. 2,500 on or before 30th June, 1915; and that if the money was paid by that date, interest should run at the rate of 12 annas percent, per mensem. It was further agreed that if the money was not paid on or before 30th June, 1915, interest should run at the rate of 24 per cent, per annum from the date of the compromise to the date of realization. Under the terms of the compromise a decree was prepared; and the plaintiff put that decree into execution, and in doing so calculated the interest at the rate of 24 per cent, per annum, upon which the defendant put in an objection under Section 47 of the CPC. In his objection the defendant raised several grounds, but the one with which we are concerned is that the decree-holder should not have calculated the interest at 24 per cent. The executing Court allowed the objection, holding that the higher rate of interest was a penalty. Against this order the present appeal is preferred by the-decree-holder. The contention on behalf of the appellant is that the rate of interest under the deed of compromise was really 24 per cent, per annum, and that it was agreed by way of concession to the defendant that if he paid the sum agreed upon on or before 30th June the rate of interest would be reduced to 9 per cent, per annum.
2. In this matter the question whether 24 per cent, is in the nature of a penalty or not does not arise. The interest on the money advanced to the defendant was at the rate of 13 annas per cent, per annum, i.e, Rs. 9-12-0 per annum, and this was the rate claimed in the plaint. From the terms of the compromise itself it is very clear that the rate of interest agreed upon was really 9 per cent, per annum, and the decree-holder therefore is entitled to obtain from the defendant Rs. 2,500 with interest at the rate of nine per cent, per annum. As to the stipulation that the rate of interest will be 24 per cent, per annum upon failure to pay the money agreed upon on the date agreed upon it is a matter which we consider to be altogether superfluous. The appeal for the above reasons will be dismissed with costs.
3. Roe, J.:— I agree that the agreement to pay, after the specified date, a rate of interest not claimed in the plaint, was outside the scope of the suit, and that any portion of the compromise which fell outside the scope of the suit was invalid and ought not to have been included in the decree and cannot be executed as part of the decree.
4. With regard to the second plea taken, that on a previous application one of the plaintiffs took the same objections as are now before us and that application was dismissed for default, I am of opinion that the dismissal for default is not a bar to giving the relief which is now sought.
V.S/R.K
5. Appeal dismissed.