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Special Land Acquisition Officer Vs. Ambalal Trikamlal - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberFirst Appeal Nos. 517, 518, 519, 520 and 521 of 1949
Judge
Reported inAIR1951Bom394; (1951)53BOMLR582; ILR1951Bom768
ActsCode of Civil Procedure (CPC), 1908 - Sections 35 and 96 - Order 21, Rule 1, 1(1) and 1(2) - Order 41, Rule 22
AppellantSpecial Land Acquisition Officer
RespondentAmbalal Trikamlal
Appellant AdvocateB.G. Thakore, Assistant Govt. Pleader
Respondent AdvocateN.C. Shah, Adv. in Nos. 517, 518, 520 and 521
Excerpt:
.....xxi, rule 1 - money decree--award of interest till payment --interest does not cease to run from date of payment of decretal amount into court--interest ceases to run from date on which notice of payment is received by judgment creditor--costs--appeal--cross-objections.;where a decree awards interest on the decretal amount until payment, interest ceases to run not from the date of deposit of the decretal amount into the court, but from the date on which notice of the deposit is received by the judgment creditor, under order. xxi, rule 1, of the civil procedure code, 1908.;ramaraya shanbogue v. sherbott venkataramanayya (1919) i. l. r. 42 mad. 576, s.i. railway co. v. m. c. mayilvahanan [1943] a.i.r. mad. 334 and bangpur raiyat bank v. hesabuddin [1932] a.i.r. cal. 111,..........amount of rs. 3,285-9-0 from 28-3-1942, which was the date on which possession was taken till the date of payment. there was an appeal from the decree passed by the district court, & on 10-12-1947, this court made a decree giving a sum of rs. 25 628-11-0 instead in place of the amount of rs. 16,947-9-0 awarded by the court below. the claimant was given interest at 4 per cent, on the excess amount of rs. 8,681-2-0 from the date on which possession was taken, i. e., 28-3-1942, to the date of payment. on 5-5-1948, notice was given by the d. h. to the land acquisition officer asking for the amount awarded to him by the decree. on 23-6-1948, payment of the amount was made into the court on behalf of the j. d. on 5-10-1948, the d. h. filed darkhast no. 7 of 1948, from which f. a. no. 517.....
Judgment:

Dixit J.

1. These five appeals which arise in execution proceedings raise a common question of law & they may conveniently be disposed of by a common judgment. The question is whether in the case of a decree which awards interest on the deoretal amount until payment, interest ceases to run from the date of deposit into the Court, although notice of the deposit has not been given to a judgment-creditor. In order to understand the question it will, I think, suffice to mention the facts in F. A. No. 517. The facts are in the main not in dispute.

2. In a compensation case (NO. 176 of 1942) the District Court, Ahmedabad, passed a decree for a sum of Rs. 16,947-9-0 in place of the amount of Rs. 18,668-0-0 awarded by way of compensation by the Special Land Acquisition Officer, Ahmedabad. It appears that interest was awarded at the rate of 4 per cent. per annum on the excess amount of Rs. 3,285-9-0 from 28-3-1942, which was the date on which possession was taken till the date of payment. There was an appeal from the decree passed by the District Court, & on 10-12-1947, this Court made a decree giving a sum of RS. 25 628-11-0 instead in place of the amount of Rs. 16,947-9-0 awarded by the Court below. The claimant was given interest at 4 per cent, on the excess amount of Rs. 8,681-2-0 from the date on which possession was taken, i. e., 28-3-1942, to the date of payment. On 5-5-1948, notice was given by the D. H. to the Land Acquisition Officer asking for the amount awarded to him by the decree. On 23-6-1948, payment of the amount was made into the Court on behalf of the J. D. On 5-10-1948, the D. H. filed darkhast No. 7 of 1948, from which F. A. No. 517 arises, to execute the decree, & in the course of the execution proceedings a purshis was filed on behalf of the appellant on 15-1-1949, stating that the amount had been already paid into the Court. Although the appellant did not file a written statement there was in effect on behalf of the appellant a plea which was one of satisfaction of the decree.

3. Various contentions were raised in the executing Court & the executing Court raised two issues, one of which need be mentioned in this place. That issue was:

'whether the D. Hs. are or are not entitled to claim interest on the amount deposited by the opponent in Court for a period from the date of deposit till they came to know about it.'

The executing Court took the view that the D. Hs. were entitled to claim interest up to 15-1-1949, i. e., the date on which the appellant filed a purshis, Ex. 8, in the case. In accordance with this conclusion and the finding recorded on another issue the executing Court made an order directing the J. D. viz. the present appellant to deposit the balance of the amount of RS. 195-5-0 within three weeks and on 6-5-1949, the executing Court disposed of the darkhast, holding that the decree was satisfied. The J. D. appeals.

4. On behalf of the appellant the learned Additional Assistant Govt. Pleader argues that the D. Hs. are not entitled to claim interest for the period subsequent to the date, viz. 33-6-1948, on which the appellant paid the amount into the Court. The question has to be answered by reference to the provisions contained in Order 21, Rule 1, Civil P. C. That rule consists of two parts. Under Sub-rule (1) money payable under a decree may be paid into the Court whose duty it is to execute the decree or out of Court to the D. H. or otherwise as the Court which made the decree directs. Sub-rule (a) of Rule 1 runs as follows:

'Where any payment is made under Clause (a) of Sub-rule (1), notice of such payment shall be given to the decree-holder.

Mr. Thakor for the appellant argues that upon a proper construction of this rule it should be held that the decretal amount should cease to bear interest from 23-6-1948, on which day the amount was deposited into the Court. Mr. N. C. Shah for the respondents contends, on the other hand, that the D. Hs entitled to claim interest up to the date, viz., 18-1-1949, the date upon which they came to to know of the payment having been made into the Court.

5. A reference to the provisions of Order 21, Rule 1, shows that there are three different modes of payment of money under a decree & in this case we are concerned with the first of these, viz., where money is paid into the Court whose duty it is to execute the decree. The effect of a deposit made into the Court is, according to one view, satisfaction of the decree, but according to the other view, it is only a partial satisfaction of the decree, & in a case where notice of the deposit of the decretal amount is not given to a D. H., the D. H. is entitled to claim interest until such time as when he comes to know of the deposit into the Court. So far as this Court is concerned, I am not aware of any decision upon this question & the learned advocates appearing for the parties have, I imagine, in spite of a diligent search into the problem, been unable to discover any. But there is some authority upon this subject. However, the question has to be considered in the first place apart from authority. As I said, there are three different sub-cls. to Sub-rule (1) of Rule 1 of Order 21, & in this connection comes the question of the construction of Sub-rule (2) of Rule 1 of Order 21. In other words, Order 21, Rule 1(1) (a) & Order 21, Rule 1(2) are to be read together. When they are so read, it is, to my mind, clear that what is required under the provisions is not merely the payment of the deoretal amount into the Court whose duty it is to execute the decree but there is a further requirement enacted in Sub-rule (2) which provides that notice of such payment shall be given to the D. H. It is obvious, therefore, that the satisfaction of the decree under Clause (1) is not effective until notice of the payment has been given to the D. H. If that is the correct interpretation of the material provisions, it seems to me that the question which these appeals raise must be answered by saying that a D. H. will be entitled to claim interest until the time when he is apprised of the fact of payment into the Court. After all, paymenthas to be made into the Court in order that the amount may be paid to him through the Court. Where the payment is made directly to the D. H., there is no question of any notice arising, &, in my opinion, upon this interpretation it seems clear that the D. Hs. are clearly right.

6. But the cases which have considered this question do not seem to be in agreement upon this point. The Nagpur High Court takes the view that in such a case interest will cease to run from the date of the payment. This view will be found in the case of Laxminarayan v. Ghasiram A.I.R. 1939 Nag. 191. The headnote in that case runs as follows :

'Where a decree orders the payment of a sum of money awarding interest until payment & the money is paid by payment into Court under the provision of Order 21, Rule 1, the interest does not run until notice has been given to the D. H. under Order 21, Rule 1(2) but ceases to run from the date of such payment.'

7. The other view is illustrated in the decision of the Madras High Court reported in Ramaraya v. Venkataramanayya, 42 Mad. 576. In that case it was held that interest does not cease to run in respect of a decree-debt deposited in Court until the D. H. gets notice of the deposit. This decision was not accepted in the Nagpur ease already cited, but it wag followed by the Calcutta High Court in Rangpur Raiyat Bank v. Hesabuddin : AIR1932Cal111 . There a later decision of the Madras High Court in S. I. Railway Co. v. M.C. Mayilvahanan A. I. R. 1943 Mad. 334 & this latter case follows the earlier Madras decision in Ramaraya v. Venkataramanayya 42 Mad. 576. It is interesting to notice that the case in Laxminarayan v. Ghasiram did not accept as good law the decision of the Madras High Court in Ramraya v. Venkatarmanayya, and the case reported in S. I. Railway Co. v. M. C. Mayilvahanan does not accept as good law the decision reported in Laxminarayan v. Ghasiram.

8. In view of this conflict of authority, it seems to me that the matter is at large & the only question which I have to determine is which of the two views is correct. It seems to me that the Madras view is to be preferred to the view taken by the Nagpur High Court. After all, the principle underlying Order XXI, Rule 1(2), is that, where a payment is made into Court in pursuance of a decree, notice has got to be given to the D.-H. as required by Sub-rule (2) because a D.H. should come to know of the payment made into Court. It may well happen that if no such notice is given, the D.-H. may not come to know of the payment for a long time. Order XXI, Rule 1(2), does not prescribe the person by whom notice is to be given. In the Civil Manual, Vol. I, 1940, is to be found Paragraph 22. This paragraph occurs in chap. II which deals with execution of decrees & the paragraph occurs under the heading 'General Instructions for the conduct of business in execution proceedings.'' Para. 22 runs as follows :

'Rule 1 of Order XXI requires that when money payable under a decree is paid into Court, notice of such payment shall be given to the D.-H. This notice should be given by the Court of its own motion & may be in Form No. 4 of Appendix H, Schedule I of the Code. It would be well to give similar notice to the D.H. or his pleader in all cases in which money is recovered by the Court on his account. The Court should also take all steps which it conveniently can to prevent moneys due to creditors from remaining unpaid in the hands of the Court or as deposits in the Govt. Treasury.'

It is obvious that this provision is intended for the guidance of the executing Courts. At any rate, Para. 22 makes it clear that the notice is required to be given by the Court of its own motion & in this instance it seems that notice was not given through the Court to the D.-H. At any rate, the D.-H. was unaware of the payment made into Court until 15-1-1949. Although, therefore, payment made under a decree into the Court may operate as a satisfaction of the decree, it will, I think, be unreasonable to hold that merely because payment is made into Court, therefore, interest should cease to run upon a decree which awards interest until payment. I think Order XXI, Rule 1(1) (a), & Order XXI, Rule 1(2), should be read together, and when so read, it is, in my opinion, clear that a D.H. would be entitled to claim interest until such time as when he comes to know of the payment of the amount into the Court. This construction is in consonance with considerations of equity. A J. D. may make a payment into the Court or he may make a payment directly to the decree-holder; but a D.H. is not likely to know as to the mode of payment which may be adopted by a judgment-debtor. There is no hardship in such a case because if a judgment-debtor desires that interest should cease to run from the date of payment, nothing would prevent him from informing the judgment-creditor himself or the pleader appearing for him to the effect that a payment has been made.

9. For the above reasons, I think, the executing Court was right in holding that the D. Hs. are entitled to claim interest till 15-1-1949, that is the date on which the opponent, viz., the present appellant, filed the purshis in the case. The result is that this appeal fails & it will be dismissed with costs.

10. The facts in the remaining four appeals are not in dispute & they raise the same question. For the reasons given above, therefore, F. As. Nos. 518, 520 & 521 of 1949 also fail and each of them will be dismissed with costs. F. A. No. 519 of 1949 will be dismissed, but there will be no order as to costs.

11. In F. As. Nos. 517, 518, 520 & 521 the D. Hs. have filed cross-objections & they are directed against the order of the Court below on the question of costs. It is contended on behalf of the respondents that the lower Court was wrong in not awarding the respondents their costs in the executing Court. Ordinarily, no appeal lies on a mere question of costs unless a question of principle is involved, & the cross-objections stand on the same tooting as an appeal on a question of costs. It is clear that the question which I have just decided is not, though simple, free from difficulty & the cases were either way. At least the material provision contained in Order XXI, Rule 1, showed that it was for the J.D. only to pay the amount into Court & Para. 22 which I have quoted above required the Court to give notice to the D.-H. It seems to me that under these circumstances the executing Court was right in not; awarding the costs to the D. Hs. in F. As. Nos. 517, 518, 520 & 521. The cross objections, therefore, fail & they too will be dismissed with costs.

12. Before parting with the case, I would suggest that Sub-rule. (2) of Order XXI, Rule 1, may suitably be amended so as to require that notice of payment shall be given through the Court to the D.-H. or his pleader or directly to the D.-H. by registered post & upon proof of such notice interest would cease to run on the decretal amount.


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