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Kishori Lal Vs. Sital Parshad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Execution First Appeal No. 268 of 1957
Judge
Reported inAIR1959P& H599
ActsCode of Civil Procedure (CPC) , 1908 - Order 34, Rule 11
AppellantKishori Lal
RespondentSital Parshad and anr.
Appellant Advocate H.L. Sarin, Adv.
Respondent Advocate D.N. Aggarwal and; R.N. Aggarwal, Advs.
DispositionAppeal allowed
Cases ReferredIn Radhakishun Chamaria v. Zalim Singh
Excerpt:
.....the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - 28,000/-.on 16-1-1951, kishori lal filed a suit for safe of the mortgaged property. in the present case thetrial court clearly allowed in the preliminary decree the future interest to the plaintiff till the dateof realisation, and in the final decree a referencewas made to all the amounts payable under thepreliminary decree, which clearly meant the amountspayable in respect of the following :1. principal; it was held in that case that it was not necessary that specific mention should be made in the final decree of the future interest and that the clause in the preliminary decree providing for the paymest of..........the time allowed in the preliminary decree with the result that an application for passing of the final decree was made on 20-2-1954, and this decree was passed on 16-8-1954. the relevant portion of the above decree is as under :'and it is hereby further ordered and decreedthat the money realised by such sale shall he paidinto the court and shall be duly applied (after deduction therefrom of the expenses of the sale) inpayment of the amount payable to the plaintiffunder the aforesaid preliminary decree and underany further orders that may have been passed inthis suit and in payment of any amount which thecourt may have adjudged due to the plaintiff forsuch costs of the suit including the costs of thisapplication and such costs, charges and expenses asmay be payable under rule 10, *.....
Judgment:

K.L. Gosain, J.

1. The facts giving rise to this appeal are as under:

(2) On 25-11-1947, Sital Parshad and Baij Nath, respondents, mortgaged their house with Ki-shori Lal appellant for a sum of Rs. 28,000/-. On 16-1-1951, Kishori Lal filed a suit for safe of the mortgaged property. On 13-3-1952, a preliminary decree was passed in the said suit, declaring that the amount due to the plaintiff was :

Principal ... ... ...

Rs. 28,000-0-0 Interest till the date of the suitRs. 2,655-0-0 Costs of the suit ... ...Rs. 2,142-8-0

Total ...Rs. 32,797-8-0

The decree further provided that the plaintiff was entitled to future interest on the principal sum of Rs. 28.000/- from the date of the decree till realisation. The judgment-debtors were given time to pay the amount referred to above by 10-10-1952, failing which the property was liable to be sold. The judgment-debtors did not pay the amount within the time allowed in the preliminary decree with the result that an application for passing of the final decree was made on 20-2-1954, and this decree was passed on 16-8-1954. The relevant portion of the above decree is as under :

'And it is hereby further ordered and decreedthat the money realised by such sale shall he paidinto the Court and shall be duly applied (after deduction therefrom of the expenses of the sale) inpayment of the amount payable to the plaintiffunder the aforesaid preliminary decree and underany further orders that may have been passed inthis suit and in payment of any amount which theCourt may have adjudged due to the plaintiff forsuch costs of the suit including the costs of thisapplication and such costs, charges and expenses asmay be payable under rule 10, * ***********.'

In execution of this decree the judgment-debtors raised objections under Section 47, Civil Procedure Code, to the effect that the decree-holder was not entitled to any interest after the date 10-10-1952. The main ground taken was that the final decree did not provide for the payment of any interest for the period after 10-10-1952, and the decree-holder was therefore not entitled to charge the same. The decree-holder resisted the objections and contended that the preliminary decree had expressly providedfor payment of future interest till the date of the actual realisation and that this direction also covered the period from 10-10-1952 onwards.

Certain other pleas were also taken by the judgment-debtors in their application under Section 47, Civil Procedure Code, but the ultimate dispute only Centred round the future interest from 10-10-1952, to the date of realisation. The learned trial Court by its order dated 25'7-1957, gave effect to the objections of the judgment-debtors on the aforesaid point and held that interest calculated after 10-10-1952, was not admissible to the decree-holder under the final decree and that the same must, therefore, be disallowed. The decree-holder feeling aggrieved against the said order has come up to this Court in first appeal.

3. The only point that falls for decision in this appeal is whether the decree-holder is entitled to interest after 10-10-1952, i.e., the date fixed in the preliminary decree for the payment of the decretal amount.

4. Now, the preliminary decree in a suit for sale is made under the provisions of R, 4 of Order 34, Civil Procedure Code, which reads :

'In a suit for sale if the plaintiff succeeds, the Court shall pass a preliminary decree to the effect mentioned in clauses (a), (b) and (c) (i) of Sub-rule (1) of Rule 2, **********.'

Rule 2 (1) (c) (i) of Order 34 provides 'that if the defendant pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause (a) or from the date on which such amount is declared in Court under clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in Rule 10, together with subsequent interest on such sums respectively as provided in Rule 11, the plaintiff shall**********'

Rule 11 of Order 34 provides for the payment of interest, In clause (a) it provides for interest up to the date on or before which payment of the amount found or declared due is under the preliminary decree to be made by the mortgagor or other per-sons redeeming the mortgage, and in clause (h) it provides for subsequent interest up to the date of realisation or actual payment on the aggregate of the principal sums specified in clause (a) as calculated in accordance with that clause at such rate as the Court deems reasonable. There can be no doubt that the interest covered by both the clauses, name-ly, (a) and (b) of Rule 11 of Order 34 has to be provided for in the preliminary decree granted under Order 34, Rule 4, Civil Procedure Code.

The preliminary decree for sale has to be passedin Form No. 5A and the final decree in Form No. 6of Appendix D of the Code of Civil Procedure.Form No. 5A provides for payment of interest andof future interest till the date of realisation. FormNo. 6 merely provides for a sale being made andthe amount being realised. In the present case thetrial Court clearly allowed in the preliminary decree the future interest to the plaintiff till the dateof realisation, and in the final decree a referencewas made to all the amounts payable under thepreliminary decree, which clearly meant the amountspayable in respect of the following :

1. principal;

2. interest;

3. future interest till the date of realisation; and

4. costs etc.

The amount payable under the preliminary decree would include the entire amount payable under whatever head it may fall. The preliminary and final decrees in this case read with the provisions of the Code of Civil Procedure, referred to above can be interpreted in the above manner only and there is, in my opinion, no scope for any argument that the future interest referred to above in the preliminary decree which was made payable till the date of realisation meant only the interest up to the date fixed by the preliminary decree for payment of the mortgage-amount.

5. The two rulings referred to in the order of the trial Court Tekait Krishna Prasad v. Surendra Mohan Kundu, AIR 1921 Pat 352, and Daulat Ram Vidya Parkash v. Sodhi Gurbakhsh Singh 50 Pun LR 294: (AIR 1949 EP 213), have absolutely no bearing on the facts of the present case. In the Patna case the final decree merely provided--'The decree is hereby made absolute.'--It did not refer to any amount declared payable in the preliminary decree. The various amendments made in 1929 in the provisions of Order 34 had not by then come into force and the case was decided on the basis of Sections 86 and 88 of the Transfer of Property Act.

The Bench of the Patna High Court held that On a correct interpretation of the preliminary decree in that case made in the light of Sections 86 and 88 of the Transfer of Property Act, it must be found that the direction given by the Court in the said decree with regard to payment of future interest was limited to the period fixed in the same for payment of the money and that interest after the said date must be found not to have been provided for. In 50 Pun LR 294: (AIR 1949 EP 213) a preliminary decree for sale was passed which was later followed bv a final decree. After the sale of the mortgaged property the decree-holder applied for passing of a personal decree and the Court granted the sate! prayer.

In execution of the personal decree a plea was taken by the decree-holder that he was entitled to future interest as directed in the preliminary decree. That contention was repelled on the ground that the personal decree did not provided for the payment of any future interest. Dwarka Prasad v. Umrao Mohammad, AIR 1931 Oudh 47, was relied upon by the decree-holder as an authority for the proposition that he was entitled to future interest even if the personal decree did not provide for the same. That ruling was distinguished on the ground that it related to a final decree and not to a personal decree.

In my opinion the Punjab Ruling supports the case of the decree-holder more than that of the judgment-debtors, because the learned Single Judge in that case agreed with the view taken in the Oudh case, and disallowed the interest because of the fact that the personal decree had not provided for it. In AIR 1931 Oudh 47, the preliminary decree directed the payment of future interest up to the date of realisation but the lower Court disallowed interest subsequent to the passing of the final decree on the ground that the final decree itself did not provide for the payment of interest.

The Division Bench of the Oudh Chief Court set aside the order of the executing Court and found that the said Court was wrong in disallowing the future interest. It was held in that case that it was not necessary that specific mention should be made in the final decree of the future interest and that the clause in the preliminary decree providing for the paymest of interest up to the date of realisation clearly entitled the decree-holders to chargeinterest till the date of actual payment of the decretal amount to them.

In Radhakishun Chamaria v. Zalim Singh, AIR 1925 Pat 455, a Division Bench of the Patna High Court disagreeing with the view taken in AIR 1921 Patna 352 found that a correct interpretation of the clause in the preliminary decree providing for payment of interest till the date of realisation could only be that the interest was to be paid till the date of actual payment of the decretal amount. I am in respectful agreement with the view taken in AIR 1931 Oudh 47 and AIR 1925 Pat 455, and feel that on a proper interpretation of the various provisions of Order 34 this is the only correct view.

6. In the result, the appeal is accepted andthe order of the executing Court dated 25-7-1957,is set aside. The decree-holder will have his costsin this Court as also in the executing Court.


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