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Musammat Jamilunnissa Bibi Vs. B. Mathura Parshad - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All208; 63Ind.Cas.362
AppellantMusammat Jamilunnissa Bibi
RespondentB. Mathura Parshad
Excerpt:
limitation act (ix of 1908), scheduled i, article 182(5) - execution, of decree--application to execute, mistake in, as to interest--application, whether in accordance with law. - - to give an example we think that if the applicant in this case asked the court to sell property not included in the decree, then it might well be said that such an application was not in accordance with law in the execution of that decree but if the applicant merely added some other property, we think it might be competent to the court to cut out the added property and hold that there was a proper application before the court to be executed, although the relief sought had been exaggerated. the decree quite clearly stated the principal amount on which compound interest had been charged, and which sum,..........as the 30th of august 1910. the suit was for sale on a mortgage and a preliminary decree on that date directed that a sum of rs. 8,712, representing the amount then due for principal, interest and costs, was to be paid on or before the 28th of february 1912. in default of payment it was directed that the property would be sold. the preliminary decree directed that after that date, namely, the 30th of august 1910, interest would run at rs. 6 per cent, per annum up to the date of realization. the final decree or sale of the property was made on the 1st of february 1913 and the amount then due was declared to be rs. 9,973-2-0. the decree was against two brothers, shah junaid alam and shah badre alam. shah junaid alam died and his heirs were brought on the record. one of them, hid.....
Judgment:

1. This is an, execution appeal arising out of execution proceedings on a mortgage decree passed as long ago as the 30th of August 1910. The suit was for sale on a mortgage and a preliminary decree on that date directed that a sum of Rs. 8,712, representing the amount then due for principal, interest and costs, was to be paid on or before the 28th of February 1912. In default of payment it was directed that the property would be sold. The preliminary decree directed that after that date, namely, the 30th of August 1910, interest would run at Rs. 6 per cent, per annum up to the date of realization. The final decree or sale of the property was made on the 1st of February 1913 and the amount then due was declared to be Rs. 9,973-2-0. The decree was against two brothers, Shah Junaid Alam and Shah Badre Alam. Shah Junaid Alam died and his heirs were brought on the record. One of them, hid daughter, is the appellant before us. The first application for execution was made on the 18th of Marsh 1913 and was dismissed for reasons which we need not now consider The second application was made on the 16th of March 1914 and was dismissed in 1914. The third application, out of which this appeal arises, was made on the 15th of March 1917. Objections were taken piecemeal against this application, which resulted in the matter being hung up for a long time. The objections were dismissed by the Court executing the decree and this Court dismissed the appeals from these orders. The objector now before us is Musammat Jamilunnissa Bibi and she complains, first, that the second application of the 16th of March 1914 was not 'in accordance with law' within the meaning of Article 182, Clause 5 of the Second Schedule to the Indian Limitation Act. The ground on which this objection was based was as follows: It is stated that the amount of interest calculated in the application for execution was compound interest, whereas the decree in the suit gave simple interest only at Rs. 6 per sent, after the date of the decision, and that, therefore, this was not an application in accordance with law. Reliance has been placed on three cases of this Court, namely, Chattar v. Newal Singh 12 A. 64 : A.W.N. (1889) 200 : 6 Ind. Dec.(N.S.) 790, Munawar Husain v. Jani Bijai Shankar 27 A. 619 : 2 A.L.J. 376 : A.W.N. (1905) 132, and Nathu Ram v. Tufail Ahmad A.W.N. (1890) 93. The fasts in all these cases were quite different and the two earlier ones have been considered and distinguished in the case of Manorath Das v. Ambica Kanta Bose 1 Ind. Cas. 57 : 9 C.L.J. 443 : 13 C.W.N. 533. It seems to us that a mere mistake in calculating interest or even deliberately calculating more interest than was due, does not make the application one not in accordance with law. If wore interest than was due is charged, it may, we think, be considered as a merely surplusage and be struck out. In the first case in Chattar v. Newal Singh 12 A. 64 : A.W.N. (1889) 200 : 6 Ind. Dec. (N.S.) 790, the Court was asked to do something which it was incompetent to do under law, and this was also the case in Munawar Husain v. Jani Bijai Shankar 27 A. 619 : 2 A.L.J. 376 : A.W.N. (1905) 132. In the Weekly Notes case Nathu Ram v. Tufail Ahmad A.W.N. (1890) 93, the application was struck out apparently because the applicant refused to amend his application as directed by the Court. To give an example we think that if the applicant in this case asked the Court to sell property not included in the decree, then it might well be said that such an application was not in accordance with law in the execution of that decree but if the applicant merely added some other property, we think it might be competent to the Court to cut out the added property and hold that there was a proper application before the Court to be executed, although the relief sought had been exaggerated. It seems to us that there is no force in this first ground and this view is strengthened by the second objection, because it is not yet decided that that the prayer was in fast or law extravagant and beyond what the decree-holder was entitled to ask or get. The second ground taken is that the interest shared was excessive and beyond what was provided in the decree. It appears that this point, although noted by the Court below, was not decided. It is argued that the applicant asks for compound interest after the final decree. It is quite clear that if compound interest has been shared as alleged, the applicant is not entitled to get it. The decree quite clearly stated the principal amount on which compound interest had been charged, and which sum, including such interest and costs, was Rs. 8,712 and that was on the 30th of August 1910 From that date the decree-holder is only entitled to Rs. 6 per sent, interest, and if he has claimed more than that the Court should not allow it.

2. The third objection taken is that the application of the 15th of March 1917 was not duly verified. The suggestion is that the verification was affixed to a piece of blank paper on which subsequently the particulars of the application were filled in. The verification was made on the 10th of March 1917 at Delhi, whereas the application was filed on the 14th of March 1917 and interest was calculated up to that date. We do not think that it is proved that the application was not duly verified, In our opinion there is no force in this appeal and we dismiss it with costs, including fees in this Court on the higher stale.


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