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Judgment
Prakash Krishna, J.—The present revision has been filed at the instance of a decree-holder, u/s 115 of CPC against the order dated 3-2-2007, whereby the executing court has held that the judgment-debtor is entitled to recover the interest at the rate of 6% per annum from the date of institution of the suit till the date of passing of the decree.
Facts of the case lie in a narrow compass and may be noticed in brief. The applicant is a company registered under the Companies Act having its registered office at 101, Neel Kanth, Commercial Centre, Shahar Road, Andheri (East) Bombay. The opposite party No. 1 is also a private company registered under the Companies Act having its registered office at Peer Panch, Chhatta Bazar, Mathura and the opposite party No. 2 is its Managing Director. On the request of opposite party No. 1 herein, the applicant advanced a sum of Rs. one crore by way of three separate loans for Rs. 25 lacs, 25 lacs and 50 lacs to meet the financial requirement of the opposite parties for implementation of sugar project at village Gopi, District Aligarh. The said sums were repayable on or before 1-12-1995. A summary suit No. 3959 of 1996, was instituted by the present applicant before the Bombay High Court for recovery of Rs. 1,18,56,438. A money decree against the opposite parties for a sum of Rs. 1,52,74,256-71 together with simple interest at the rate of 18% per annum on the principal amount of Rs. one crore till the date of payment was passed. The said decree has attained finality, as has not been challenged by either party.
The decree was transferred for execution to Aligarh court and the said case was registered as execution case No. 1 of 2000 wherein an objection u/s 47 CPC, was filed by the judgment debtor opposite parties, on the ground that the interest at the rate of 18% has been wrongly awarded by the Bombay High Court and it should have been at the rate of 6% per annum. Further objection was that the judgment debtors are liable to pay the interest from the date of institution of the suit till the passing of the decree. The objections filed by the judgment debtors have been upheld by the order under revision. Challenging the same, the present revision is at the instance of the decree holder.
The only point mooted in the present revision is whether the executing court could have varied or modified the period and rate of interest, while executing the decree.
Sri B.K. Srivastava, learned senior counsel appearing on behalf of decree holder submits that the executing court could not go behind the decree. In other words, the executing court cannot examine the legality and validity of the decree. It is bound to execute the decree as it is. Learned Counsel for the judgement debtors, on the other hand, supports the impugned order.
Considered the respective submissions of the learned Counsel for the parties and perused the record.
A copy of the loan agreement entered into between the parties which was exhibit ''A-2'' has been annexed as Annexure-2 to the affidavit. Clause-6 thereof, provides that the loan shall carry interest at the rate of 28% per annum up front and the borrower undertakes to pay the interest for the entire period of loan at the time of initial disbursement of the loan. The argument is that 28% per annum was the agreed rate of interest and the interest is payable till the payment of final loan amount. However, the Bombay High Court, while passing the decree, has modified the rate of interest by its judgment dated 18-6-1988 and provided that the interest would be payable at the rate of 18% per annum on the principal sum of Rs. one crore till payment and/or realisation. The said judgment of the Bombay High Court, as mentioned hereinabove, has attained finality. This being so, in my considered view, the executing court, which has received the decree on transfer, is bound to execute the decree as it is. It is an acknowledged legal position that the executing court cannot go behind a decree. It has to execute the decree as it is. Legality or validity of a decree cannot be the subject matter of discussion before an executing court. An executing court can refuse to execute a decree only when the decree is null or void due to lack of jurisdiction, which is not the case here. Reference can be made to Topanmal Chhotamal Vs. Kundomal Gangaram and Others, and Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Others, . Learned Counsel for the judgment debtors could not place any material before this Court to take a different view of the matter.
The cases relied upon by the executing court in its judgment in support of its view that it can examine the legality and validity of the decree, are misplaced one and distinguishable. These are the cases where the Court was faced with a situation, when the decree was passed by a court having no jurisdiction. The executing court has misdirected itself and has failed to appreciate the difference in between a decree which has been passed by a court well within its jurisdiction, may be on merits unsustainable, and a decree which has been passed by a court having no jurisdiction. It is not the case here that the decree passed by the Bombay High Court is without jurisdiction. At the most, rate of interest and the period for which the judgment debtors are liable to pay the interest may appear to be excessive to executing court, but this will not empower the executing court to modify the decree by awarding a lesser rate of interest or for a lesser period. The executing court has exercised its jurisdiction not vested in it by law while passing the impugned order and the said order is liable to be set aside.
In the result, the revision succeeds and is allowed with costs of Rs. 10,000/-. The impugned order dated 3-2-2007 passed by Judge, Small Causes Court, Aligarh exercising powers of executing court in execution case No. 365 of 2000, is hereby set aside. The executing court is directed to proceed with the execution of the decree forthwith and try to satisfy the decree within a period of six months from the date of production of certified copy of this order.