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Mooka, Naicker Vs. A.K. Venkatasami Naidu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 310 of 1948
Judge
Reported inAIR1950Mad807; (1950)IIMLJ194
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 1 - Order 41, Rule 5
AppellantMooka, Naicker
RespondentA.K. Venkatasami Naidu and anr.
Appellant AdvocateA. Sundaram Ayyar, Adv.
Respondent AdvocateK. Veerasami, Adv.
DispositionAppeal dismissed
Cases ReferredPeriakaruppan Chettiar v. Veerappa Chettiar
Excerpt:
- - in the ruling cited, it was pointed out that it would weigh very heavily on an impecunious decree-holder if at the instance of a well-to-do judgment-debtor he should be put in the position of losing interest for no other reason except that he had not the means to furnish security. ' it was, therefore, held in circumstances very similar to those of the present case that the judgment-debtor was not entitled to claim that the running of interest ceased with the fact of his deposit on account of the failure of the decree-holder to draw out the amount on furnishing security......make a deposit of the amount of the decree of the court below which the respondent before me, the decree-holder, was directed to take out on furnishing security. the respondent could not furnish security and did not take out the money. it was contended in the execution petition (filed after the disposal of the appeal against the decree) out of which this appeal arises that interest ceased to run with the deposit of the amount of the decree of the court below by the appellant as a condition of the stay order made pending the disposal of the appeal against the decree itself. the contention was negatived by the court below but is repeated here. there is authority of this court binding upon me, the decision of a bench reported in periakaruppan chettiar v. veerappa chettiar, : air1944mad46.....
Judgment:

Raghava Rao, J.

1. In this case the appellant as a condition of obtaining an order of stay of execution of a certain decree against which he had filed an appeal in this Court was asked by this Court to make a deposit of the amount of the decree of the Court below which the respondent before me, the decree-holder, was directed to take out on furnishing security. The respondent could not furnish security and did not take out the money. It was contended in the execution petition (filed after the disposal of the appeal against the decree) out of which this appeal arises that interest ceased to run with the deposit of the amount of the decree of the Court below by the appellant as a condition of the stay order made pending the disposal of the appeal against the decree itself. The contention was negatived by the Court below but is repeated here. There is authority of this Court binding upon me, the decision of a Bench reported in Periakaruppan Chettiar v. Veerappa Chettiar, : AIR1944Mad46 which concludes this matter against the appellant. In the ruling cited, it was pointed out that

'it would weigh very heavily on an impecunious decree-holder if at the instance of a well-to-do judgment-debtor he should be put in the position of losing interest for no other reason except that he had not the means to furnish security.'

It was, therefore, held in circumstances very similar to those of the present case that the judgment-debtor was not entitled to claim that the running of interest ceased with the fact of his deposit on account of the failure of the decree-holder to draw out the amount on furnishing security.

2. It is contended by Mr. Sundaram Aiyar for the appellant that this is not a case of mere voluntary payment by him which might mean that interest might not cease to run, but the case of a payment which his client made under the (sic) order on an invitation by the decree-holder, the respondent, to his client to pay the amount into Court. I am not prepared to say that merely because the respondent was a party to the order of Court which directed the deposit and the security that he invited the appellant to pay the money into Court. Of course in the case of voluntary payments it is not disputed by the learned counsel for the appellant that interest ceases to run. For instance in the case in Sitaramayya v. Venkanna, 1911 2 M. L. J. 768: A. I. R. 1942 Mad. 166 it was held that:

'Where, though there was no application for execution pending, the defendant obtained a stay, on condition that security was to be given to the Court for the decree amount and instead of furnishing security he chose to deposit the decree amount in cash, on a reversal of the decree he was not entitled to claim any interest on the amount deposited.' It was pointed out that there was no scope for the application of the principle embodied in Section 144, Civil P. C., because the deposit of the money was something which the defendant there made of his own volition and not because of any direction of the Court. If the respondent had suffered any loss, say their Lordships, the blame must rest with him. That case has no strict application to the case on hand; but the principle deducible from it is that in the case of voluntary payments there cannot be any contention that interest ceases to run on account of such deposits, even as there cannot be a contention that interest is claimable in restitution on reversal of the decree under which a voluntary deposit is made by the judgment-debtor. The deposit in the present ease may not be voluntary in the sense that the judgment-debtor made the deposit of the amount in Court without any order of Court, There was undoubtedly the order of the Court under which he made the deposit, but the order was one which on his invitation the Court made, and as a condition of the indulgence which the order meant, the Court directed that he should pay the money into Court for the respondent to draw out on furnishing security. The fast that the respondent was unable to draw it out, as has been pointed out by Mockett J. in the ruling in Periakaruppan Chettiar v. Veerappa Chettiar, : AIR1944Mad46 already referred to, cannot in the nature or the reason of the thing disentitle the decree-holder to interest on the amount deposited.

3. In the circumstances the appeal fails and is dismissed with costs.


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