District Board vs Ramkishun Singh and Another

U.N. Sinha, J.—This appeal has been filed by the judgment-debtor and it is directed against the judgment of a learned single Judge of this Court, passed in Miscellaneous First Appeal No.,159 of 1961, on the 25th July, 1963. The appeal arises out of an objection to execution filed by the appellant u/s 47 of the Code of Civil Procedure. This objection had been filed in Money Execution Case No. 11 of 1960. The decreeholders had claimed in this execution case an amount of Rs. 11,863.96 paise as interest subsequent to the decree passed in favour of the decree holders and upto 27th March, 1958. The only question which arises in this appeal is whether the decree holders-respondents are entitled to obtain this interest from the judgment-debtor or not.

Some facts have to be mentioned for determination of the controversy between the parties. The respondents had obtained a decree in Money Suit No. 137/1 of 1949/51 on the 24th April, 1951. The suit had been decreed for the principal amount of Rs. 29,119 together with interest pendente lite amounting to Rs. 2,475-3-6 pies. The decree had also allowed future interest at six per cent, per annum from the date of the institution of the suit until realisation. A decree for costs had also been passed in favour of the decree holders, amounting to Rs. 3,058-7-6 pies. The decree holders levied Execution Case No. 10 of 1951 and soon thereafter, on the 23rd July, 1951, the judgment-debtor filed an appeal in this Court, which was numbered as First Appeal No. 295 of 1951. After various proceedings, which will be dealt with latter, the first appeal was dismissed by this Court on the 27th March, 1958 with costs. The costs decreed by the High Court had come to Rs. 803.74 paise. There is no dispute that the judgment-debtor has paid the two sets of costs to the decreeholders amounting to Rs. 3058-7-6 pies and Rs. 803.74 paise respectively. The decree holders received on 27th June, 1958, Rs. 32,757-12-0, three months after the decision of the first appeal of this Court. This amount had included future interest decreed by the trial court upto 19th December, 1951. In the present execution in question, the decree-holders gave an account, calculating interest from the 25th April, 1951 to 27th March, 1958 at six per cent per annum, and after allowing for the two sets of costs received by them and crediting Rs. 32,757-12-0 they have claimed the balance mentioned above.

What had happened after the institution of the first appeal in this Court by the judgment-debtor-appellant, was as follows: It obtained an order for stay of execution levied by the decree holders on the 3rd September, 1951 from the Registrar of this Court by which the judgment-debtor was asked to deposit Rs. 34,000 within six weeks. The decree holders were permitted to withdraw this amount, if they so desired, only on furnishing security to the satisfaction of the Court below. The judgment-debtor moved the Bench against the order of the Registrar, but it was unsuccessful. Six weeks from the order of the Registrar dated the 3rd September, 1951 having passed, the decree holders tried to attach certain money belonging to the judgment-debtor in the Treasury. Attachment was issued by the Court in December 1951 and 21st December, 1951 was fixed for return. On the 18th December, 1951 the judgment-debtor filed a petition in the executing court asking that it may be permitted to deposit Rs. 31,584 and odd. Order was passed by the executing court on the 20th December, 1951, by which the amount tendered by the judgment-debtor was accepted and Chalan was ordered to be passed. On the 21st December, 1951 the judgment-debtor filed a petition praying that the writ of attachment issued may be recalled and it may be permitted to deposit the amount tendered by it. To this objection was taken on behalf of the decree-holders on the ground that the judgment-debtor should have deposited the amount that it wished to deposit, within six weeks from the 3rd September, 1951. On this, order was passed on the 8th February, 1952, by which the execution was allowed to proceed. Substantially it was done of the ground that the judgment-debtor ought to have made deposit within six weeks of the order of the Registrar of this Court mentioned above. The judgment-debtor''s contention was that it had six weeks'' time from the final order, which order had been passed by the Bench of this Court on the 9th November, 1951, refusing to interfere with the order passed by the Registrar on the 3rd September, 1951. This argument was rejected. In the meantime, the judgment-debtor had moved this Court in the first appeal, asking for a direction on the executing court to accept the judgment-debtor''s deposit. This application had failed in this Court. It appears that the judgment debtor thereafter moved this Court for putting terms upon the decree holders for withdrawing the attached money and a Bench of this Court passed an order on the 6th March, 1952, stating that the decree holders may withdraw the attached money, if they so chose, provided they furnished security to the satisfaction of the Court below. The money was ordered to remain under attachment until withdrawn on this condition. Thereafter, the attached money, amounting to Rs. 32757-12-0 was transferred to civil deposit from the Treasury, and on the 28th March, 1952, the executing court passed the following order:

Let the execution case be dismissed on full satisfaction. The decree money will not be withdrawn without furnishing security as directed by the High Court.

The decree-holders, however, did not withdraw this money and thereafter, the first appeal was dismissed, as already stated on the 27th March, 1958. The decree holders are claiming interest from the 19th December, 1951, on the ground that when they had attached Rs. 32757-12-0, they had calculated interest up to the 19th December, 1951.

In substance, the appellant-judgment debtor''s contentions are that the decree had been fully satisfied on the 28th March, 1962, by virtue of the order passed by the executing court, quoted above, and that when the decree holders had objected on the 21st December, 1951 to the judgment-debtor making any deposit, they were not entitled to any interest beyond that date. I will deal with the second contention first. It is clear from the facts of the case that the judgment-debtor had never made any unconditional offer of payment and when it had offered to deposit the decretal dues in December, 1951, it was trying to deposit certain amount of money as if it was in compliance with the order of the Registrar passed on the 3rd September, 1951. That is why the decreeholders had objected to the deposit on the 21st December, 1951, and it is clear from the order of the executing court passed on the 8th February, 1952, that, the judgment-debtor''s prayer was rejected, because tender had been made beyond six weeks from the order of the Registrar of this Court. There is, therefore, no substance in the contention raised on behalf of the judgment debtor that the decree-holders had put in obstacle in the way of the judgment-debtor in December, 1951, and, therefore, interest ceased to run. It is clear from the record that the attitude taken up, at all stages, by the judgment-debtor was that the decree-holders may not be permitted to withdraw any decretal dues tendered in Court by the judgment debtor or attached by the decree-holders without furnishing security. In these circumstances, it is not possible to hold that interest would cease to run. A similar point has been decided by a Bench of this Court in District Board, Purnea v. Imteaz Hussain M.F.A. No. 243 of 1961 decided on 12th July 1962, where the case law on this point has been dealt with by the Bench. In that case also, the District Board of Purnea had been allowed by the High Court to deposit the decretal dues in cash and this Court permitted the decree holder to withdraw the money on furnishing security. It was held that the judgment-debtor, at whose instance the decree holder was hampered in his attempts to obtain payment of his money, was liable to pay the interest decreed. This contention raised on behalf of the judgment-debtor is, therefore, rejected.

The other point raised on behalf of the appellant relying on the order passed by the executing court on the 28th March, 1952 has been put on the basis of res judicata. This point had not been taken by the judgment-debtor before the executing court in this case and it was raised for the first time before the learned single judge. The learned Judge has held that even if the judgment-debtor is allowed to raise this point, it is clear from the order passed by the executing court, that, it was not such a final order that it could operate as res judicata. In my opinion, this conclusion of the learned single Judge is correct, as the order passed on the 28th March, 1952 must be read as a whole and it only repeated the order of this Court passed on the 6th March, 1952 in the first appeal to the effect that the decree holders could withdraw the attached money on furnishing security and not otherwise. It may also be noted that all that was said on the 28th March, 1952 by the executing court was that, "the execution case be dismissed". This execution case was levied in July, 1951, and even for the purpose of attachment the decree holders had calculated interest only upto 19th December, 1951. Therefore, this order cannot affect any interest after the 19th December, 1951, and in any case, the order of the executing court was not that the decree had been fully satisfied. A decision of a Division Bench of the Lahore High Court in the case of Amtn Chand v. Firm Chuni Lal Tulsi Ram AIR 1937 Lah. 733 supports the decree-holders in their claim in spite of the order passed by the executing court on the 28th March, 1952. As the decree holders had not withdrawn the attached money on giving security, it appears that Money Execution Case No. 10 of 1951 remained on the file and it is clear from the facts that the decree holders were permitted to withdraw Rs. 32757-12-0 paise on the 27th June, 1958 in that very execution case. It further appears from the petition of execution filed in the present execution case, that, even after 19G0, when this execution case was filed, the suit register and the execution register had not shown that the decree had been satisfied. This petition in the present execution case states that necessary entries "regarding the disposal of Ex. 10/51 may be ordered to be made in suit Register as well as in Ex-Register which are blank." Therefore, this contention raised on behalf of the judgment-debtor-appellant fails on merit also, even if it is allowed to be raised.

In the result, all the arguments advanced on behalf of the appellants fail and the appeal is dismissed with costs.

R.L. Narasimham, C.J.

I agree.