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Panaji Girdharlal Vs. Ratanchand Hajarimal Marwadi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberLetters Patent Appeal No. 8 of 1931
Judge
Reported inAIR1933Bom364; (1933)35BOMLR620
AppellantPanaji Girdharlal
RespondentRatanchand Hajarimal Marwadi
DispositionAppeal allowed
Excerpt:
decree for money-execution-piecemeal execution-execution for principal amount-subsequent execution for interest-civil procedure code (act v of 1908) order ii, rule 2.;it is not permissible to the holder of a money decree to execute it first for the amount of the decree, and, secondly, for the interest due from the date of the decree to the date of payment. the money decree should be executed as a whole, and not piecemeal.;forster v. baker [1910] 2 k.b. 636, followed.;upendra nath bose v. k.b. dutt (1926) i.l.r. 53 cal. 582, dissented from. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under..........which the learned judge accepted was that, generally speaking, piecemeal execution of a money decree is not permissible. but the view he took was that in the absence of any definite rule of law compelling the decree-holder to apply for interest at the same time as the principal it was permissible for the darkhast-holder to make separate applications for such principal and interest. so that, i think he really held that this case came within the principle that where a decree gives different reliefs it can be separately executed. i am not prepared to accept that view. it seems to me that a judgment for principal and interest is a single money decree, and cannot be said to give different forms of relief, and i think that the question which we really have to consider is whether.....
Judgment:

John Beaumont, C.J.

1. This is an appeal under the Letters Patent from the decision of Mr. Justice Madgavkar given in second appeal, and the appeal raises a question of some importance in connection with the law of execution. The plaintiff' got a judgment for a sum of Rs. 1,359 and for costs of the suit and interest at the rate of six per cent. per annum from the date of the filing of the suit. In the year 1924 the plaintiff filed a darkhast asking for payment of the principal sums awarded by the decree and costs. The form of the application follows form 6 in appendix E to the schedule of the Civil Procedure Code. It states in paragraph 7, in accordance with the requirements of Order XXI, Rule 11 (2) (g), that the claim in suit is Rs. 1,359 to be paid to the plaintiff and costs and interest at the rate of six per cent, per annum from the date of filing of the suit. Then in column 8 it shows what costs have been awarded and totals up those costs, with the sum of Rs. 1,359, as amounting to Rs. 1,615-10-8. Then in the tenth column the plaintiff prays that the total amount of Rs. 1,615-10-8 and the costs of taking out this execution be realised by attachment and sale of defendant's moveable property. So that what the plaintiff asks for is payment of the principal sum and costs awarded by the decree, but he does not ask for execution in respect of the interest awarded to him subsequent to the decree. The amount claimed in that darkhast was paid by the judgment-debtor, and in the year 1926 the plaintiff took out the present darkhast asking for the interest awarded to him by the original decree, and for certain other costs which have been paid and upon which no question arises. The question we have to determine is whether the present darkhast, in asking for moneys covered by the original decree and not asked for in the first darkhast, is permissible. The trial Court held that the darkhast was bad. The lower appellate Court disagreed with that finding and held the darkhast good, and in second appeal Mr. Justice Madgavkar agreed with the lower appellate Court and held the darkhast good.

2. It was not disputed in the lower Courts, and has not been disputed here, that Order II, Rule 2, which prevents multiplicity of suits is not applicable to proceedings in execution. But one may observe that that order shows that the general policy of the framers of the Civil Procedure Code was to require parties who have got certain rights to assert them all at the same time and not piecemeal. Mr. Justice Madgavkar accepted two propositions, first that where the decree sought to be executed gives two different reliefs, for example, possession of immoveable property and mesne profits, the decree may be executed separately in respect of the possession and mesne profits. There is plenty of authority in support of that proposition, upon which I desire to cast no doubt whatever. The second proposition which the learned Judge accepted was that, generally speaking, piecemeal execution of a money decree is not permissible. But the view he took was that in the absence of any definite rule of law compelling the decree-holder to apply for interest at the same time as the principal it was permissible for the darkhast-holder to make separate applications for such principal and interest. So that, I think he really held that this case came within the principle that where a decree gives different reliefs it can be separately executed. I am not prepared to accept that view. It seems to me that a judgment for principal and interest is a single money decree, and cannot be said to give different forms of relief, and I think that the question which we really have to consider is whether there is any objection in India to executing a money decree in several stages. Mr. Chitale for the respondent has contended that there is nothing in the Code which prevents piecemeal execution. That no doubt is so, but the contention seems to view the proposition from the wrong angle. Under English law it is not permissible to levy execution of a money decree in different stages. It has been held that where there is only one judgment for a sum of money there can only be one execution upon it, see Forster v. Baker (1910) 2 K.B. 636 If piecemeal execution is permissible in India it seems to me that the party executing must show, not that that right is forbidden by the Code, but that it is conferred by the Code. There is nothing in the Code which expressly authorises piecemeal execution, and a good many of the provisions of Order XXI, which deals with execution, seem to me opposed to the idea that there can be more than one execution of a money decree. For example, Rule 10 of Order XXI provides for the execution of the decree, and not of a portion of the decree. Rule 11 (2) (g) provides that in the particulars to be stated in the application for execution the amount with interest if any due upon the decree must be stated, and there is no express provision for stating the amount for which the execution-creditor desires to levy execution. Rule 15 provides for the execution of a decree passed jointly in favour of more persons than one and provides for the whole decree being executed by one of the joint holders, and does not confer any power on the joint holders to execute the decree to the extent of their respective interests. The proviso to Rule 17 and the terms of Rule 64 also seem to me to suggest that the decree must be executed for the amount payable under it. In my opinion, there is no authority for the proposition that a single money decree for sums immediately payable at the date of execution can be executed at different times. I think that the correct rule, and certainly the rule of convenience, is that a party having a right to execute a decree for money presently payable must enforce the whole decree at the same time. We were referred to several cases and the only one which seems to me definitely against the view which I am expressing is the case of upendra Nath Base v. K.B. Dutt I.L.R. (1926) Cal. 582 There the learned Judges accept the view expressed by Sir Barnes Peacock in an earlier case that piecemeal execution is not permissible, but they say that the objection should be taken to the first execution, and not to the second execution which is to recover the whole balance payable. With all respect to the learned Judges who decided that case, the question does not turn upon the legality of the first execution, but upon its effect.' There is, I apprehend, no legal objection to a judgment-creditor giving up part of his rights. If a man recovers judgment for Rs. 1,000 there is nothing to prevent him saying that he is willing to execute it only for Rs. 500. That execution is not invalid, but the question is whether the effect of that execution is to prevent execution for the balance of the judgment debt. To my mind that is the effect. I think that if a person having a right to recover a certain sum under a decree asks the Court to enforce that decree for a less sum, he must be taken to waive his right to levy execution for the balance. Certain cases were referred to by Mr. Chitale arising under Article 182 of the Indian Limitation Act in which it was held that a darkhast for part of the amount due would be a step in execution which would prevent a subsequent darkhast from being time barred. But the actual question which we have to decide was not considered or discussed in those cases. In my opinion, therefore, this appeal must be allowed and we must hold that the effect of the earlier darkhast for a portion of the amount due at the date thereof was to prevent the judgment-creditor from taking subsequent darkhast proceedings for the balance.

Murphy, J.

3. The point we have to decide is whether, when a judgment-creditor has obtained a decree for principal and interest to date of payment and costs, and has applied for execution, and executed it in respect of the principal and costs, and subsequently puts in a fresh application for interest only-a prayer omitted in the previous application he can be allowed to execute it, or is barred from so doing by the principle contained in Order II, Rule 2. Order II, Rule 2, does not apply to applications for execution and there is, in the rest of the Code, neither a prohibition against, nor permission for such procedure, and there is no case exactly in point. The case law, which has been relied on in the course of the arguments and by the appellate Judge who first heard the appeal, is contained in Upendra Nath Bose v. K.B. Dutt I.L.R. (1926) Cal. 582 Somasundaram v. Chokkalingam I.L.R. (1916) Mad. 780 Balasubramania Chetti v. Swarnammal I.L.R. (1913) Mad. 199 Sadho Saran v. Hawal Pande I.L.R. (1893) All. 98 and Radha Kishen Lall v. Radha Pershad Sing I.L.R. (1891) Cal. 515 Of these cases that of Somasundaram v. Chokkalingam is the nearest analogy, but what was allowed to be executed there was a second application for interest on a sum which had been recovered from the person who had been paid, on the reversal of the decree in appeal, under which he obtained it. The remaining cases allowing separate execution of different parts of the same decree really deal with matters which are essentially separate, such as a decree for possession and mense profits, or for possession and costs. Mr. Chitale has also relied on certain cases which are really authorities on the question of what is a step in aid of execution in accordance with law, under the Indian Limitation Act. But these do not seem to me to be in point in this matter. Rules 10 and 15 of Order XXI suggest, that what should be prayed for is execution of the decree as a whole, and form 6 in appendix E seems to me to require a claim for principal and interest to be made in the same application, such a decree being essentially a money decree for the total amount in both cases. I agree that the decree appealed against must be reversed and the execution application dismissed with costs throughout.


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