Ishwar Nath Topa and Others vs Surender Singh Ahluwalia

This objection-petition has been Bled by the successors-in-interest of Shri Surrinder Singh Ahluwalia, judgment debtor.

A suit was filed against Shri Surrinder Singh Ahluwalia, Judgment-debtor, for the recovery of Rs.30,423.50paise on the basis of a mortgage. It was alleged that the judgment-debtor had mortgaged a house on the basis of a registered mortgaged deed dated the 14th March, 1947 for Rs.25,000 which amount had been received by him in cash and had agreed to pay back the amount with interest. It was further alleged that the judgment-debtor had paid only a sum of Rs.150 towards interest and had paid nothing towards the principal. The mortgages claimed to recover Rs. 30,423.50paise principal and interest, by the sale of the mortgaged property. The suit was contested by the judgment-debtor. He had raised various pleas.

The learned Subordinate Judge, who was seized of the suit, passed a preliminary decree in favor of the mortgages for the recovery of Rs.30,423.50paise with costs and future interest at the rate of Rs.6 per cent per annum from the date of the suit till realisation. The judgment-debtor was given six months'' time to pay the decretal amount. It was ordered that if he failed to do so, the mortgages were entitled to apply for a final decree to realise the decretal amount by the sale of the mortgaged property.

The judgment-debtor failed to pay the decretal amount as ordered. The mortgages put in an application for the passing of the final decree. The final decree was passed on the 23rd January, 1962.

The mortgages took out execution of the decree, praying that the mortgaged property be sold.

The legal representatives of the judgment-debtor, who had died during the pendency of the execution proceedings, have filed the present objections u/s 30 of the Punjab Relief of Indebtedness Act (hereinafter referred to as the Act). It is pleaded, in the objections, that the judgment-debtor had borrowed a sum of Rs.25,000 only and the mortgages were trying to recover more than double the amount actually advanced, which they could not do in view of the provisions of Section 30 of the Act. It is, further, pleaded that the mortgaged property is worth Rs.1 1/4lakhs and that the legal representatives may be permitted to sell the property privately.

The objections have been opposed on behalf of the mortgages. It is averred that the provisions of Section 30 of the Act do not apply and that the mortgages were entitled to recover more than double the amount, which had been actually advanced.

By my order dated the 26th November, 1968, I rejected the prayer of the legal representatives of the judgment-debtor for permission to sell the mortgaged property privately. The following issue was settled with respect to the plea about Section 30 of the Act:

"Whether the decree-holder is not entitled to recover more than Rs.50,000?

(O. P. Applicants-judgment-debtors)"

The parties have not led any evidence on the issue. The learned counsel for the parties have addressed arguments.

Before adverting to the contentions of the learned counsel for the parties, the relevant provisions of Section So of the Act may be set forth:

"30(1) -- In any suit brought after the commencement of this Act in respect of a "debt as defined in Section 7, advanced before the commencement of this Act no court shall pass or execute a decree or give effect to an award in respect of such debt for a larger sum than twice the amount of sum found by the Court to have been actually advanced, less any amount already received by a creditor in excess of the amount due to him under clause (e) of sub-section (2) of Section 3 of the 3 Act, 1918."

It is common ground, between the parties, that an amount of Rs.25,000 had been advanced in cash to the judgment-debtor against the mortgage of the property and that the amount in excess of the double amount, namely, Rs.50,000 sought to be recovered consists of future interest Only, awarded by the Court at the time of passing the decree. The disagreement, between the parties, is about the point whether future interest awarded by the Court at the time of passing the decree can be taken into consideration while determining double the amount or not. The contention for the legal representatives of the judgment-debtor is that it should be taken into consideration while according to the mortgages, it should not be.

A similar point had arisen for decision in Nagin Singh v. L. Jagan Nath Air 1944 Lah 422. It was observed:

"It is contended on behalf of the appellants that in as much as the decretal amount including future interest which will ultimately be recovered from the mortgaged property would traverse the limit set by S. 30 (1), the decree as made by the trial Judge is bad in law. We, however, consider that the terra "decree" as used in sub-section (1) has no reference to future interest and consequently the decree as made is not hit by this sub-section. It will be seen that this sub-section is headed "Damdupat" and in substance enacts the principles underlying that famous doctrine of Hindu Law. It is further obvious that interest is separately provided for u/s 34, C. P. C."

The learned Judges noted the provisions of S. 34, C. P. C. and observed:

"Under this section a question arose whether future interest was covered by the damdupat rule of Hindu Law and it was decided that the Court could under this section award further interest to the lender from the date of the suit though the aggregate interest may thereby exceed the original sum, the reason being that the rule of damdupat ceases to operate from the date of the suit. (Mulla''s Code of Civil Procedure, llth Edn., p. 146). Exactly the same rub win apply u/s So (1). Even otherwise, under sub-rule (1) of Rule 4 of Order 84, (Civil Procedure Code, it is contemplated that the Court will declare by the preliminary decree the amount due to the plaintiff "together with such amount as may have been adjudged due in respect of subsequent costs, charges, expenses and interest", and this evidently shows that interest is something apart from the decree. In calculating, Therefore, the amount that can be decreed under sub-section (1) of Section 30, the future interest allowed on the decree is not to be taken into Consideration at all,"

The above observations, with which I am in respectful agreement, fully apply to the present case. It may further be added that the amended clause (b) of Rule 11 of Order 84, Code of Civil Procedure, empowers the Court to award future interest till the date of realisation, in a mortgage decree.

The contention of the learned counsel for the legal representatives that future interest allowed by the Court at the time of passing of a mortgage decree is to be counted while determining double the amount cannot be accepted.

The learned counsel for the legal representatives has cited Firm Jog Dhian Jiwan is v. Ram Kaur, Air 1945 Lah 33 and Hukam Singh and Others Vs. Duli Lal Singh and Others, . The authothorities cited are of no assistance to the legal representatives. The question in the Lahore authority was whether mere omission to raise the objection about Section 30 during the trial stage would debar a person from raising that objection after the decree had been passed against him. It was held that the person was not debarred from raising the objection. In the present case, there is no plea that the legal representatives cannot raise the objection about the applicability of S. 30 in the execution proceedings. In Hukam Singh and Others Vs. Duli Lal Singh and Others, it was held that the legal representatives can take advantage of the provisions of Section 30.

The learned counsel for the legal representatives had argued that sub-section (1) of Section 30 was susceptible of the interpretation sought to be put upon it by him so far as it not only prohibits the passing of the decree but also the executing of the decree which is for a larger sum than twice the amount found by the Court to have been actually advanced. This argument was also advanced in Air 1944 Lah 422 (supra). The argument was repelled with the following observations:

"But if the sub-section is interpreted in the manner suggested by the appellants'' counsel, it would evidently lead to an absurdity. It Is clear that a decree when executed even includes costs. Could it be the intention of the Legislature to take into consideration costs of the suit also when a decree was to be made On a sum actually advanced? Evidently not Otherwise the decretal amount would vary each Court in the different stages of the same litigation, if the original decree is taken on appeal up to the final Court."

The result is that future interest, awarded by the Court at the time of passing of a mortgage decree, cannot be taken into consideration while determining the double amount u/s 30(1) of the Act. The issue, struck, is held against the legal representatives and the objection petition is dismissed with costs, Lawyer''s fee Rs.50.

Petition dismissed.