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Neelacanda Iyer Vs. V. Gopala Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberA.S. No. 218 of 1961
Judge
Reported inAIR1966Ker192
ActsCode of Civil Procedure (CPC) , 1908 - Sections 31(3), 34 and 34(1); ;Code of Civil Procedure (CPC) (Amendment) Act, 1951 - Sections 20; Travancore Code of Civil Procedure (CPC) - Sections 31(3)
AppellantNeelacanda Iyer
RespondentV. Gopala Pillai and anr.
Appellant Advocate K.V. Suryanarayana Iyer,; P.C. Chacko and; P. Krishnamoo
Respondent Advocate K.N. Narayanan Nair,; G.R. Panicker,; N. Sudhakaran
DispositionAppeal dismissed
Cases Referred and Krishna Kamath Ramachandra v. Narayanan Kuttan
Excerpt:
.....act 2 of 1951, that the res-pondent bad acquired a vested right by the decree, which can in no way be affected by the passing of section 84(1) of the indian code......the payment of money, the court may, in addition to the interest awarded under sub-section (1), decree payment of interest on the principal sum adjudged of such amount as may accrue at a rate not exceeding twelve per cent from the date of suit to the date of decree.(3) notwithstanding anything contained in act iv of 1010, where the decree is for the payment of money, the court may, in addition to the interest decreed under sub-sections 1 and 2, decree future interest at a rate not higher than nine per cent, on the aggregate sum adjudged from the date of decree to the date of payment or to such earlier date as the court thinks fit, provided, however, that the amount of interest accruing from the date of the decree shall not exceed the aggregate sum adjudged. section 34(2) of the indian.....
Judgment:

Velu Pillai, J.

1. In view of the question arising for decision, it is not necessary to relate all the facts of this ancient litigation. The appeal arises in execution of a decree which was obtained by the appellant, mortgagee of certain properties, on the basis of a lease back to the mortgagor, for recovery of possession with arrears of rent and future rent. The decree was passed on the 10th March, 1928 under the Travancore Civil Procedure Code. The question which arises for decision is whether the appellant can recover future interest, that is interest subsequent to the date of the decree, without any limit as under Section 34(1) of the Indian Civil Procedure Code or only subject to the limit imposed by Section 31(8) of the Travancore Civil Procedure Code. Section 81(1), (2) and (3) of the latter may be usefully quoted and are as follows:

(1) In suits for money, no Court shall, in respect of the period antecedent to the insti-tution of the suit, allow in its decree a higher rate of interest than twelve per cent per annum and the amount adjudged as interest for such period shall not exceed one-hall of the principal amount sued for.

(2) Notwithstanding anything contained in Act 1 of 1010, where the decree is for the payment of money, the Court may, in addition to the interest awarded under Sub-section (1), decree payment of interest on the principal sum adjudged of such amount as may accrue at a rate not exceeding twelve per cent from the date of suit to the date of decree.

(3) Notwithstanding anything contained in Act IV of 1010, where the decree is for the payment of money, the Court may, in addition to the interest decreed under Sub-sections 1 and 2, decree future interest at a rate not higher than nine per cent, on the aggregate sum adjudged from the date of decree to the date of payment or to such earlier date as the Court thinks fit, provided, however, that the amount of interest accruing from the date of the decree shall not exceed the aggregate sum adjudged.

Section 34(2) of the Indian Code also may be quoted and is as follows:

'Where such a decree is silent with respect in the payment of further interest on such principal sum from the date of the decree to the date of payment or other earlier dale, the Court shall he deemed to have refused such interest, and a separate suit therefor shall not lie.'

Under Section 31(3) of the Travancore Code, future interest shall not exceed the aggregate sum adjudged. Owing to several proceedings which have taken place since the date of the decree, which it is unnecessary to relate, future interest accrued under the decree has exceeded the limit, but the appellant sought by his execu-tion petition to recover the entirety of it This was opposed at first by the official receiver in whom the interest of one of the judgment debtors had vested on his insolvency and sub-sequently on annulment of insolvency, was opposed by the respondent, who is the legal representative of the judgment-debtor. The Travancore Code which became the Travan core-Cochin Code on integration of States was by the Code of Civil Procedure (Amendment) Act, 1951, Central Act 2 of 1951, replaced by the Indian Code

2. The contentions of the appellant are two-fold, first that the decree being one for the recovery of possession and of rent past and future, is not a decree for the payment of money within the meaning of Section 31(3) of the Travancore Code and of Section 34(1) of the Indian Code, and second, that no right had accrued to the respondent in respect of the limit of future interest set by Section 31(8) of the Travan-core Code so as to be saved by the operation of Section 20 of Act 2 of 1951, notwithstanding the repeal of the Travancore or Travancore-Cochin Codes.

3. On the first contention learned counsel for the appellant made a classification of decrees into decrees for money, decrees for or relating to immovable property, and decrees for movable properties. We were taken through some of the provisions of the Civil Procedure Code which deal with such decrees, and in particular. Order XX, Rules 9 to 12 and Order XXI, Rules 2 and 18 of the Indian Code. One of the rules relied on. Order XXI, Rule 30, which provides :

'Every decree for the payment of money including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in the civil prison of the judgment-debtor, or by the attachment and sale of his property, or by both.' seems really to go against the appellant. The rule is related to Section 51 the proviso to which used the words 'decree for the payment of money and provides certain safeguards subject to which alone a judgment-debtor may be committed to the civil prison. The argument of learned counsel if pushed to the logical extent implies, that in a decree such as the one before us for the realisation of money by way of rent also personally from the judgment-debtors, detention in civil prison cannot be ordered, and even if it can be ordered, the safeguards under the proviso are not applicable; this cannot be and learned counsel did not contend for such a position We conceive, that the proviso to Section 51 was meant to afford protection to a judgment-debtor under a decree, in which there is a money claim to enforce personally against him. The contention that 'a decree for money' or ''for the payment of money' means for the purpose of Section 31(3) of the. Travancore Code or of Section 34(1) of the Indian Code, a decree simpliciter for money, in which no other relief is granted, does not appear to be sound.

4. In the Travancore Code, the provision of Order XXXIV, as they now obtain in the Indian Code, did not find a place. Under Order XXXIV, Rule 11, interest may be decreed in suits for foreclosure, sale, or redemption, where interest is legally recoverable this rule does not apply to interest which may be allow-ed in a decree under Order XXXIV, Rule 6 for recovering the balance of the mortgage amount, if any, remaining unrealised after the sale of the mortgaged properly. To such cases, Section 34 of the Indian Code has been applied in Chatli Narasimhamurli v. Narayanasetti Jagan-naikulu, AIR 1959 Andh Pra 619 and in Firm Daulal Ram Vidya Pargash v. Gurbaksh Singh, AIR 1949 EP 213. In the Travancore Code, Section 31 was the only provision under which the Court could allow in its decree, interest on the amount of the decree for the period subsequent to the date of the decree. The vexed question which has arisen under the Indian Code, whether a mortgage decree, irrespective of personal relief being granted or not, is a decree for the payment of money under Section 73 of the Indian Code, does not arise in relation to Section 31 of the Travancore Code; on the authority of the cases cited it does not arise under Section 34 of the Indian Code either, in respect of the amount realisable personally.

5. The language of Section 31 (3) of the Travancore Code does not compel us to accept the view, that it is restricted in its application to a decree solely for money as contended. The structure of Section 31 has to be borne in mind. Sub-section (1) which relates to the period antecedent to the dale of the suit opens with the words 'in suits for money'; subsection (2) is supplemental and relates to the next stage, the period between the date of the suit and the date of the decree. Sub-section (8) marks the subsequent stage, the period subsequent to the date of the decree in the 'suit for money' which has now culminated in a decree. Thus the term 'decree for payment of money' occurring in Sub-section (8) is not to be divorced from the term 'suit for money'. The term 'suit for money' is comprehensive to comprise all proceedings to enforce money claims, whether such claims are combined will others or are ancillary to them or not. The term 'suit for money' has been interpreted by a Full Bench of the Travancore High Court in Ouseph Ouseph v. Arya Antharjanom, 1948 Trav LR 509 at p. 522 to mean, 'all proceed ings which have for their object the detention of the right to a certain sum of money or the determination of the exact amount of money to which a party may be entitled'. There can-not be any difficulty in holding that a decree for the payment of money under Sub-section (3) is related to the suit for money as interpreted. In Section 34 of the Indian Code, the corresponding words are, 'where and in so far as a decree is for the payment of money' which is equivalent to 'to the extent to which the decree awards payment in money'. The decree in the present case besides being for hiP recovery of possession, is also for the personal payment of rent, past and future, by defendants 1 and 2, for its realisation from the assets of defendants 1 to 5, and as charged on the equity of redemption of the property and on the funds in the hands of the receiver. For the reasons stated, the decree has to be held to be one for the payment of money within the meaning of Section 31(3) of the Travancore Code. This sufficiently answers the first contention of learned counsel.

6. There is no substance in the second contention The relevant part of Section 20 of Central Act 2 of 1951 reads:

'If, immediately before the date on which the said Code comes into force in any Part B State, there is in force in that State any law corresponding to the said Code, that law shall on that date stand repealed.

Provided that the repeal shall not affect--xx xxx(b) any right, privilege, obligation or liabi-lity acquired, accrued or incurred under anylaw so repealed, or

xx xx xx' The short point to decide is, whether the immunity of the debtor from liability for interest in excess of the limit prescribed by Section 31(8) of the Travancore Code, is a right accrued in his favour. We have no doubt that it is, and a valuable and a substantive right. In Panneswaran Pillai v. Jacob Perumal, AIR 1956 Trav-Co 236 a case under Section 31(1) of the Travancore Code, it was held that the immunity from liability for any excess interest for the period antecedent to the suit was a valuable right which the defendant had acquired and which could not be taken away in consequence of the repeal of the Travancore Code by the Indian Code. Learned counsel attempt ed to draw a distinction between subsections (1) and (2) and Sub-section (8) of Section 31, because under the former the interest realisable is quantified in the decree, while under the latter it remains an uncertain quantity, whether or not the limit is exceeded, depending upon the time factor. This, we think, is not a test for deciding whether a right had accrued or not in favour of the debtor under the decree as passed. The distinction urged is unsound. The Travancore High Court held in the Full Bench case cited of 1943 Trav LR 609, that Section 81 of the Travancore Code is a substantive provision of law though it occurs in a statute relating to procedure.

7. Learned counsel, relied on the following observations in Abbot v. The Minister for Lands. 1895 AC 425 at p 431:

'They think that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deem-ed a 'right accrued' within the meaning of the enactment.'

and contended, that the right of the respondent, such as it was, to lake advantage of Section 31(3) of the Travancore Code in the event of interest exceeding the prescribed limit, which is contingent in nature cannot be regarded as a right accrued which is saved, by Section 20 of Act 2 of 1951. In Sakharam v. Manikchand, AIR 1963 SC 351 at p. 356 the Supreme Court after con-sidering the above passage observed:

'It is thus clear that the context in which the observations relied upon by the respondent as quoted above, were made is entirely different from the context of the present controversy That decision is only authority for the proposition that the mere right, existing at the date of a repealing statute, to lake advantage of provisions of the statute repealed is not a 'right accrued' within the meaning of the usual saving clause. In that ruling, their Lordships of the Privy Council assumed that the contingent right of the original grantee was a right but it was not a right accrued within the meaning of the repealed statute.'

This answers the contention of learned counsel, that the right to plead Section 31 (3) is no right at all because it is contingent. The Supreme Court observed further:

'It was held not to have accrued because the option given to the original grantee to make additional purchases had not beenbefore the repeal. In other words, the rightwhich was sought to be exercised was not inexistence at the date of the repealing Act, whichhad restricted those rights.'and distinguished Abbot's case, 1895 AC 426.In the present case the right under Section 31(3).is by way of immunity against excess interest.The right that future interest realisable underthe decree shall not exceed the limit is a rightwhich had accrued in the respondent,by virtue of the decree and the dateof the decree.

8. The matter may be viewed in another perspective. When the decree was passed, as stated, Section 31(8) of the Travancore Code was in force. There is nothing in the decree to suggest, that Section 31(3) was in any way contravened, even if such contravention was possible The decree being silent as to the quantum of future interest, it can only be deemed, that the court intended to pass a decree in conformity with Section 31(3). As a matter of construction it must be deemed, as if the provision in Section 31 (3) as to the limit of future interest has been incorporated in the decree itself and formed part of it. A similar view has been taken in V. Sreekanta Iyer v. Suriya Vadivoo Lekshmi Ammal, (1931) 21 Trav LJ 1033 and Krishna Kamath Ramachandra v. Narayanan Kuttan, (1984) 24 Trav LJ 338. In the former case the decree was passed when Act 4 of 1010 was in force, according to which future interest was not to exceed half the amount of the principal; the court held as a matter of construction, that the decree had allowed future interest only up to a moiety of the principal and that the change in the law brought about by Section 31(3) of the Travancore Cade had no effect on the amount of interest realisable under the decree.

9. It therefore follows, both on a con-struction of the decree and on the application of Section 20 of Central Act 2 of 1951, that the res-pondent bad acquired a vested right by the decree, which can in no way be affected by the passing of Section 84(1) of the Indian Code. The Subordinate Judge was right in his conclusion. No other point was urged before us

10. In the result, this appeal is dismissedwith costs.


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