S. Ramaswami Chetty and Another vs B. Venkatarama Reddi

Govinda Menon, J.—This is an appeal against the order of the Subordinate Judge of Chittoor in E.P. No. 3 of 1947 in O. S. No. 51 of

1940 on the file of that Court. The preliminary decree in O. S. No. 51, directed the payment of a sum of money as maintenance to one

Venkatarangamma who was the plaintiff in that suit with a charge on certain items of property which are now sought to be sold. The judgment-

debtors in that suits are the contesting respondents now. The preliminary decree came up in appeal to this Court in A. S. No. 178 of 1913 and

Leach C. J. and Shahabuddin J. modified the same by enhancing the rate of maintenance from Rs. 75 a month to Rs. 100 a month. The charge

allowed on certain properties was left intact. Since the judgment-debtor did not act according to the preliminary decree, a final decree was passed

for sale of the properties on 6-7-1946. It has to be mentioned that before the final decree was passed, Venkatarangamma assigned her rights to

Venkatarama Reddi, the present contesting respondent, and he it was who applied for getting the final decree and got it on 6-7-1946.

Execution Petition No. 3 of 1947 was an application by the assignee decree-holder who got the final decree in his favour, under Order 21, Rule

66, Civil P. C., praying that the schedule properties may be sold for the realisation of the amount due under the decree. The application was

resisted by the judgment-debtors on the ground that though the final decree stated that the decree-holder was entitled to subsequent interest as

may be payable, under Rule 11 of Order 34, Civil P. C., on the decretal amount, there was no rate of interest fixed and therefore the claim of the

assignee decree-holder for interest on the decree amount is not sustainable. Order 34, Rule 11 only allows the award of interest but does not fix

any rate of interest and it is left to the Court to fix the reasonable interest or the contract rate between the parties and since the final decree also

does not mention any rate of interest, it was contended for the judgment-debtors before the lower Court that no interest could be awarded in

favour of the assignee decree-holder. The learned Subordinate Judge did not accept this contention but held that the plaintiff can claim interest on

the amount claimed by him from the date of the final decree. The learned Judge did not give any authority for his view but held that the decree-

holder was entitled to interest. Aggrieved by this decision of the learned Judge, the judgment-debtors have preferred this appeal.

The only question that need be considered is whether, if a decree directs the payment of interest but does not stipulate the rate of interest

payable, it is open to the executing Court to fix any reasonable rate of interest and direct the payment of that interest to the decree-holder. Learned

counsel for the appellants contends that the executing Court cannot add to the de. cree by fixing a rate of interest and he relies on the observations

at pp. 962, 966 and 968 of the decision in Pankuni Menon v. Raman Menon, 54 Mad. 955 AIR 1931 Mad. 650 . In that case four Judges

forming the majority of a Pull Bench of five were of opinion that where a decree allows the payment of mesne profits but does not fix the rate of

interest on the profits realised by the persons in wrongful possession then it is not open to the executing Court to award any interest at all or fix any

reasonable rate as that Court may deem fit. At p. 962 of the report, Ananthakrishna Aiyar J. with whom the three other learned Judges, Beasley

C. J., Eamesam and Sundram Chetti JJ. agreed, observes as follows :

As already mentioned, it is a question of the construction of the final decree in each case, whether the same either specifically, or by necessary

reference to the documents referred to by it, awards, and fixes the rate of interest; but, when the final deoree does not award interest in that

manner, it is clear that it is not open to the executing Oourt to fix the rate ot interest and then to execute the deoree allowing interest.

At p. 966 the learned Judge observed as follows:

Such a decree is open to appeal in the manner provided by the Code; but unless appealed against, at the stage when the execution of the same ia

sought, the executing Court could not award interest or fix the rate of interest when the final decree is silent on those matters.

Again at p. 968 the following passage occurs :

It is clear that the executing Court would not be warranted in fixing the rate of interest, when the Court which passed the deoree fixing the amount

did not do so.

Mr. Ramachandra Rao for the respondent con-tends that this decision is not applicable to the facts of the present case because what was decided

there was that when no interest is fixed for mesne profits it is not open to the executing Court to fix the interest. The definition of mesne profits in

Section 2, Clause 12, Civil P. C., is to the effect that it includes profits when the person in wrongful possession of the property actually received or

might, with ordinary diligence, have received therefrom together with interest on such profits etc., i. e., when the words ""mesne profits"" are used;

the expression connotes not only the profits which the person in wrongful possession realised or obtained but it includes interest on that sum during

the period the wrongful possessor had the use of the profits. Therefore, when the final decree in that case said mesne profits would be allowed, it is

tantamount to saying that the profits realised by the wrongful possessor along with interest thereon will be paid over to the successful claimant. The

proper interpretation to be put upon it is that the final decree provided for the payment of a sum of money as the profits realised together with

interest thereon, There was an absence of any direction regarding the rate of interest to be fixed. We are unable to find any distinction between the

facts of that case and the facts of the present case. As already stated, in the present case, the final decree directed that the decree-holder be paid a

Bam of money with a charge on the property and that interest will be realisable under Order 34, Rule 11, but no rate was fixed.

Learned counsel for the respondent invited our attention to a decision of the Allahabad High Court in Collector of Moradabad Vs. Kanhaiya Lal

and Another, , where it ig stated that in a case where the decree is silent as to interest, but the Court executing the decree is the same which passed

the decree, it is open to the Court to allow interest in execution proceedings, for the period during which proceedings remained stayed on the

application of the judgment-debtor pending appeal from the decree. The attention of the learned Judges of the Allahabad High Court was invited to

the decision in Pankunni Menon v. Raman Menon, 54 Mad. 955 : A. I. R.1931 Mad. 650 and the learned Judges said that they agreed with the

decision of the Madras High Court. But on the facts of the particular case, thay were of opinion that since the judg-ment-debtor by means of

obtaining the stay order prevented the decree-holder from having the use of the property, it is open to the latter to claim the amount of interest

principally by way of damages. The learned Judges have not cited any authority for the view which they have expressed. We do not think any

useful guidance coan be obtained from the decision in Collector of Moradabad Vs. Kanhaiya Lal and Another, for a correct conclusion of the

present case. The Full Bench of the Madras High Court, as we have already stated, covers the point here and we are bound by it. We, therefore,

are of opinion that the learned Subordinate Judge was not right in allowing interest on the decretal amount since no rate of interest was fixed in the

final decree. The appeal is, therefore, allowed with costs.

In passing, we may mention that the non- fixation of the rate of interest should be deemed to have been a mistake committed by the officer who

was responsible for drafting the decree and it is open to the transferee decree-holder even now to apply to the Court which passed the decree to

have that decree amended and brought into conformity with the intention aa gatherable from the passing of the final decree and if the Sub-Court

amends the decree by allowing a reasonable rate of interest it is then open to the assignee decree-holder to execute the same against the charged

properties.