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Sri Sri Durga Madhava Deo Garu Vs. Sri Sri Radhamohana Rajendra Deo Garu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1938Mad522; (1938)1MLJ437
AppellantSri Sri Durga Madhava Deo Garu
RespondentSri Sri Radhamohana Rajendra Deo Garu and ors.
Cases ReferredNaresh Chandra Bose v. Krishna Bhabini Dasi I.L.R.
Excerpt:
- - 3. in appeal it has been argued that section 34 does not apply to the present decree partly because the decree directs the payment of money in the future as well as money immediately rendered due by the decree and partly because the decree creates a charge. it is quite clearly obiter dictum. all that was necessary to say was that any attempt to obtain interest in execution must fail......and therefore realised his maintenance only after considerable delay. he accordingly filed the present suit o.s. no. 32 of 1929 to recover from the defendant interest upon the amounts of maintenance which he had thus realised in execution. the principal defence to his suit was based upon section 34(2), civil procedure code, which runs as follows:where such a decree (that is, a decree for the payment of money) is silent with respect to the payment of further interest on such aggregate sum as aforesaid...the court shall be deemed to have refused such interest, and a separate suit therefor shall not lie.2. the learned district judge of ganjam upheld this plea and dismissed the suit. hence the present appeal.3. in appeal it has been argued that section 34 does not apply to the present.....
Judgment:

King, J.

1. The appellant here is a junior member of the family of the Zamindar of Chikati who in the year 1912 filed a suit for maintenance and obtained a decree granting him maintenance at Rs. 500 a month from the date of his plaint and future maintenance to date from the 1st May, 1912. For some years, apparently, this maintenance was paid without any need for the appellant to have recourse to execution, but after 1923 for some years the appellant's case was that he had frequently to file execution petitions and therefore realised his maintenance only after considerable delay. He accordingly filed the present suit O.S. No. 32 of 1929 to recover from the defendant interest upon the amounts of maintenance which he had thus realised in execution. The principal defence to his suit was based upon Section 34(2), Civil Procedure Code, which runs as follows:

Where such a decree (that is, a decree for the payment of money) is silent with respect to the payment of further interest on such aggregate sum as aforesaid...the Court shall be deemed to have refused such interest, and a separate suit therefor shall not lie.

2. The learned District Judge of Ganjam upheld this plea and dismissed the suit. Hence the present appeal.

3. In appeal it has been argued that Section 34 does not apply to the present decree partly because the decree directs the payment of money in the future as well as money immediately rendered due by the decree and partly because the decree creates a charge. We are unable to see how either of these two peculiarities in the decree make any real difference between it and an ordinary decree for money. What the plaintiff was asking for and what the decree granted him was certainly a relief in money. This is not a decree to enforce a charge. It merely creates a charge as an additional security or method by which the decree-holder can enforce his decree. We have also been referred to certain rulings, which incidentally have been elaborately discussed by the learned District Judge. One of these is Seth Gokul Dass Gopal Dass v. Murli and Zalim where their Lordships of the Privy Council hold that they see no reason why a suit should not lie for the realisation of subsequent interest which is not granted by a decree. This decision however was passed at a time before any provision analogous to the present Section 34 (2) had been enacted, and in our opinion can for that reason afford us very little assistance, apart altogether from the fact that it was not necessary for the decision of that case for the particular passage in question to have been incorporated in the judgment. It is quite clearly obiter dictum. We have then been referred to a judgment reported in Naresh Chandra Bose v. Krishna Bhabini Dasi I.L.R. (1925) Cal. 42. That judgment no doubt is in one sense of the word directly in point because it deals with a decree for maintenance in which no provision for interest was made and it is held that a decree-holder attempting to execute such a decree cannot recover interest in execution. The learned Judges of the Calcutta High Court then go on 'The decree-holder must pursue the proper remedy which is by bringing a suit for damages for detention of the decretal amount.' Here again it is in our opinion unnecessary to have made such a pronouncement in order to have disposed of the case. All that was necessary to say was that any attempt to obtain interest in execution must fail. We do not understand the learned Judges to have considered the question carefully as to whether the alternative remedy by suit was maintainable or not. In any case there is in Naresh Chandra Bose v. Krishna Bhabini Dasi I.L.R. (1925) Cal. 42 no reference at all to Section 34(2) which in our opinion would provide a complete answer to the obiter dictum to be found in the judgment. We are therefore without any assistance at all from any of the rulings as to the interpretation of Section 34(2) and we must return to our own first impression that the section obviously applies to a decree of this kind which is essentially a decree for money.

4. We are of opinion therefore that the learned District Judge was right in holding that the appellant's suit was not maintainable and this appeal must be dismissed with costs.


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