Anup Singh and Another vs Jaspal Singh and Brothers and Others

G.C. Garg, J.—This revision is directed against the order of the executing Court disposing of the objection petition of the judgment debtor.

Learned Counsel for the Petitioner submitted that the executing Court not only erred in concluding that the decree holder is entitled to interest pendente lite on the decretal amount but also erred in calculating interest on the amount of interest claimed and allowed in the suit.

In order to understand the controversy few facts deserve to be notice. Plaintiff-respondent filed a suit for the recovery of Rs. 8, 79, 168.30 P. (principal Rs. 6,47,406.30 P, + interest Rs. 2,31,762/- ). The suit was decreed by concluding as under:

For the reasons discussed above, the suit of the Plaintiff succeeds and I decree the suit of Plaintiff for the recovery of Rs. 8,79,168,30 P. with costs alongwith future interest % 18% per annum till realisation of the suit amount as the liability in this case has arisen out of commercial transaction. Decree-sheet be prepared accordingly. File be consigned to record room.

The operative portion of the decree is also in the above terms and it reads as under:

It is hereby ordered that the suit of the Plaintiff stands decreed for the recovery of Rs. 8,79, 168.30 P. with costs alongwith future interest @ 18% per annum till realisation of the suit amount as the liability in this case has arisen out of commercial transaction.

It is not disputed that appeal against the judgment and decree of the trial Court is pending final adjudication in this Court. Since the stay was declined, Plaintiff decree holder took out execution. Admittedly Gurdev Singh is one of the judgment debtors and the decree holder has already received a sum of Rs. 2,85,000/- from him from out of the decretal amount. Some property of the judgment debtors has also been sold for about Rs. 11,90,500/- but the sale in respect thereof is yet to be confirmed. Some more property is already under attachment. The executing Court is proceeding with the execution of the decree by concluding that interest on the decretal amount from the date of the suit till the date of the decree has not been declined and that a critical perusal of the judgment shows that the Court did allow the interest for the whole period i.e. pendente lite interest. The other contention raised, namely, whether interest could be calculated on the amount of interest allowed by the decree, has not been specifically dealt with, but it could not be much disputed that the executing Court has taken the total decretal amount i.e. Rs. 8,79,168.30 P. for the purpose of calculating interest.

I have heard Learned Counsel for the parties and have perused the record. The judgment and decree passed by the trial Court is clear and unambiguous. It only decreed the suit for the recovery of Rs. 8,79,168.30 P. with interest alongwith future interest. The use of the word "future interest" is quite significant. It only means that future interest till realisation has been allowed i.e. from the date of the decree till realisation. If the Court intended to grant pendente lite interest it would have used the words from the date of the suit till realisation or from the date of the suit till the date of decree and future interest from the date of the decree till realisation. The Court decreeing the suit, however, only said "along with future interest". Interest payable for the period of pendency of the suit cannot be said to be future interest. The relief which has not been specifically declined cannot by analogy be taken to have been granted. The executing Court rejected the contention by observing that the interest from the date of filing the suit till judgment has not been declined. This approach does not seem to be correct. It is thus concluded that the decree holder is not entitled under the decree to pendente lite interest on the decretal amount.

Again, as already noticed, it is not much in dispute that the amount due as worked out by the decree holder has been worked out by adding interest on the entire decretal amount namely Rs. 8,79,168.30 P. Section 34 of the CPC allows the Court to order payment of interest on the principal sum adjudged. This interest can be awarded by the Court from the date of the suit to the date of the decree and from the date of decree till realisation on the principal sum adjudged or to such earlier date as it may think fit. The language of Section 34 is quite clear and admits of no ambiguity. Under this section interest can only be awarded on the principal sum adjudged and not on the amount decreed. In this case the principal sum claimed in the suit was Rs. 6,47,406/- only and Rs. 2,31,762/- was claimed as interest on this amount from the date the amount became due till the date of the suit. Though the suit was decreed for Rs. 8,79,168.30 P. but it will have to be read in the decree that the interest was awarded on the principal sum adjudged i.e. Rs. 6,47,406.30 P. Even otherwise, a reading of the operative part of the judgment and decree of the Court shows that the suit was decreed for Rs. 8,47,168.30P. and the interest was granted till realisation of the suit amount. It never granted interest on the total decretal amount and use of the word suit amount is significant, It refers to the principal amount or the principal sum adjudged i.e. Rs. 6,47,406.30 paise.

In the context of the above, the contention of Learned Counsel for Respondent No. 1 that this Court should not interfere in exercise of revisional jurisdiction, no injustice having been caused to the Petitioners by the impugned order, has no merit. As already noticed, learned executing Court acted illegally and with material irregularity in calculating interest on the decretal amount. The other contention of Learned Counsel for Respondent No. 1 that the suit was for the recovery of Rs. 8,79,168.30 paise and the executing Court was right in calculating interest pendente lite from the date of the suit till realisation, against has no merit. A bare perusal of the suit goes to show that the principal amount claimed in the suit was not Rs. 8,79,168.30 paise but was Rs. 6,47,406.30 paise only. Reliance placed on Bank of Baroda v. Jagannath Pigment and Chem 1996 (1) P.L.R. 193 is of no assistance to counsel for Respondent No. 1 as factual position in the reported case is different from the facts of this case.

In the above situation, this revision petition is allowed in limine and order under revision is modified accordingly. The executing Court shall now proceed with execution application according to law. No costs. It is clarified that anything said herein is subject to the clarification/modification of the decree in the pending appeal.