V. Muthuramalinga Thevar vs I. Kannan

Abdul Hadi, J.—This review petition is against the judgment dated 12-11-1993 in C.R.P.No. 2623 of 1990, which was actually a common

judgment in the said civil revision petition and another connected S.A. No. 1477 of 1988. In both the civil revision petition and the second Appeal,

the defendant in O.S.No. 636 of 1982 on the file of the 8th Assistant City Civil Court, Madras is the petitioner and appellant respectively. Though

both were heard together, learned counsel who appeared in both the matters, did not make separate arguments in the civil revision petition. While

the second appeal was dismissed on merits, the civil revision petition was dismissed on the ground that no argument was advanced therein. Now,

the petitioner in the civil revision petition has filed this review application.

The Suit was for recovery of Rs. 8,125/- with interest at the ""Court rate"" from the date of plaint (24-12-1981). The judgment by the trial court

specifically stated that ""the plaintiff is entitled to a decree for Rs. 6,400/- only"". In other words, it did not actually say any thing about interest. But

the decree, as drafted by the trial court was for Rs. 6,400/- together with interest at 18 per cent per annum from 24-12-1981 till date of payment.

The Plaintiff preferred A.S.No. 232 of 1986 while the difendant preferred A.S.No. 88 of 1986. By a Common Judgment, the lower appellate

court enhanced the decree to Rs. 7,855/- in A.S.No. 232 of 1986, but it made no mention about interest at all. The abovesaid second appeal was

against the dismissal of A.S.No. 88 of 1986. After the said Common judgment in A.S.No. 88 of 1986 and A.S.No. 232 of 1986, the Plaintiff filed

C.M.P.No. 92 of 1987 in A.S.No. 232 of 1986, so as to incorporate therein interest at the rate of 18 per cent per annum on the abovesaid Rs.

7,855/-. The said petition was allowed by order dated 25-2- 1988. The abovesaid civil revision petition is against the said order dated 25-2-

1988.

However in this review application against the order in the Civil revision petition, it is contended by learned counsel for the petitioner that the

abovesaid grant of 18% interest per annum is against Section 34, C.P.C. and so, the non-consideration of this aspect in the CRP, even though the

counsel by oversight omitted to argue the CRP. is an error apparent on the face of record and hence, the review application could be entertained

and the interest rate should be corrected to 6% which alone is ""the court rate"" prayed for by the plaintiff himself in the plaint, in the absence of any

plea that the suit transaction was a commercial transaction. The decision in Kunjalu v. Jose 1993 11 M.L.J. 454 , is relied onto contend that

awarding of interest at 18% per annum in the decree in the above suit, as against the decision in the judgment therein that the plaintiff is entitled to a

decree for Rs. 6,400/- only, is also wrong and an error apparent on the face of the record. The decision in Sigappiachi and Others Vs. M.A.P.A.

Palaniappa Chettiar, , is also relied on. There it has been held that awarding of interest in a decree high than what is allowed by the Section 34

C.P.C is an error apparent of the face of the record and such awarding can be corrected in a review application under Order 47 Rule 1 C.P.C.

On the other hand, the respondent, who appeared in person, could not say anything contra as against these decisions. He only relied on the

decision in Sheodan Singh Vs. Smt. Daryao Kunwar, , which has no relevance to the abovesaid question. It only dealt with Res Judicata question,

which has no relevance at all in the present case. I fully agree with the contention of learned counsel for the petitioner, particularly in view of the

above referred to Sigappiachi and Others Vs. M.A.P.A. Palaniappa Chettiar, .

Accordingly I allow this review application and grant interest only at 6% Per annum instead of 18% per annum, already granted. No costs.