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Muthukrishna Raja and anr. Vs. Viswalinga Kadavarayar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1940Mad893
AppellantMuthukrishna Raja and anr.
RespondentViswalinga Kadavarayar and ors.
Cases ReferredNaresh Chandra v. Krishna Bhobini Dasi
Excerpt:
- .....on 16th august 1929 he admitted receipt of the amount in question and prior to it he had already filed an application for entering up satisfaction to the extent of his share.10. on that occasion the court thinking that he ought not to be permitted to report satisfaction because it would be prejudicial to the interests of the other plaintiffs, declined to enter satisfaction. but that is no ground for allowing the plaintiffs to execute the decree for the full' amount. there is no limitation for a decree-holder to certify and if the decree-holder really had certified at one stage, the judgment-debtor is entitled to take advantage of it and request the executing court to record satisfaction to that extent. satisfaction will therefore be entered as regards plaintiff 1's one-third share. as.....
Judgment:

Somayya, J.

1. This is an appeal against the order of the Subordinate Judge of Kumbakonam in A.S. No. 18 of 1935 by which he confirmed the order of the District Munsif passed in E.P. No. 620 of 1933 in O.S. No. 113 of 1921. O.S. No. 113 of 1921 was filed by three plaintiffs who were all minors on that date represented by their mother as next friend. The suit was to recover a sum of Rs. 2468-14-9 on a charge of the plaint properties. It appears that the amount was claimed as being the balance of the purchase money due to the plaintiffs. There was a compromise on foot of which there was a consent decree passed on 31st March 1922. The decree, which merely embodied the terms of the compromise, provided that a sum of Rs. 1700 with interest at six per cent, per annum from the date of plaint to date of the compromise should be paid within six months from the date of the decree and that in default execution was to be taken against the properties and against the person of the defendant and the amount recovered. As the plaintiffs were minors, it was also said that the money when paid into Court should be drawn on furnishing security. A similar provision was made that security should be given when execution was taken out and the money realized. There were a number of execution petitions filed to enforce this decree. The first of them was filed in the year 1925 by the mother acting as the next friend. It is said that there were a number of irregularities in that application and we may leave it out.

2. The second application was filed by plaintiff 1 who attained majority in the meanwhile. This application was filed on 10th March 1928 by plaintiff 1 for himself and as the next friend of plaintiffs 2 and 3. This was dismissed on 9th July 1928 and it is said that in this execution petition the relief that was asked was one that could not be claimed under the terms of the compromise decree and so we shall leave this also out of consideration. The next execution application was filed by plaintiff 1 for himself and on behalf of plaintiffs 2 and 3. This was filed on 16th August 1929. The application did not originally contain a schedule of the properties sought to be brought to sale and there were also some other defects. The application was returned for amendment and it was re-presented with the amendments including a list of the properties sought to be sold. It was finally dismissed on 16th January 1930 on the ground that plaintiff 1 did not furnish security for the amount which was already drawn either by him or by his mother. Then a fourth application was filed on 1st March 1930 by plaintiff 1 for himself and on behalf of plaintiffs 2 and 3. This again was dismissed on 30th June 1930. The Court directed plaintiff 1 to deposit into Court the amount which was already received by him or his mother and as the amount was not paid or security given for that amount, the application was rejected on 30th June 1930. The present execution application was filed on 10th April 1933. The question is whether this execution application is within time. Both the lower Courts rejected the application as barred by limitation.

3. It is urged for the appellants that until 1927 or 1928 plaintiff 1 was a minor and that until then limitation would not begin to run as all of them were minors. This is not disputed by the respondents. Limitation can therefore start only after plaintiff 1 attained majority, which we will take, was in the year 1927 as contended by the respondents' advocate. The applications which plaintiff 1 filed on 16th August 1929 and 1st March 1930 have been translated and placed before me. If these two applications were in accordance with law, then under Article 182, Clause 5 limitation has to be counted from the date when the final order was passed on these applications. Taking the first of these applications, what is urged is that, to start with, the schedule of properties was not given, that post-diem interest was claimed when it was not permissible under the decree, that certain payments which had been made to the decree-holders were not given credit to in the execution petition and lastly that plaintiff 1 did not get himself appointed as next friend of plaintiffs 2 and 3. On these grounds the respondents' learned advocate asks me to say that the application was not one in accordance with law. He also says that the order rejecting the application is not a 'final order' within the meaning of Article 182, Clause 5, Limitation Act, as amended recently.

4. Under Order 21, Rule 17, Civil P.C., when an execution application returned for satisfying any of the requirements under Order 21, Rules 11 to 14 is re-presented, the effect is that the representation dates back to the date of the original presentation. Under Order 21, Rule 11, the decree-holder is bound to give particulars of the property which he wants to be sold for realizing the amount of the decree. Since these particulars were not given in the original execution application, the Courts as provided by Rule 17, Clause (1) ascertained whether the requirements of Rules 11 to 14 were complied with and returned the application giving a time within which the defect was to be remedied. Clause (2) of Rule 17 says that where an application is amended under the provisions of Sub-rule (1) it shall be deemed to be an application in accordance with law and presented on the date when it was first presented. I have not been referred to any authority which lays down that the mere fact that a list of the properties was not given in the original execution application deprives the decree-holder of the benefit of Order 21, Rule 17(2). In this case the Court instead of rejecting the application straightway returned it calling upon the decree-holders to make the amendment and the decree-holders complied with the requirement within the time limited. In this case there is no warrant for saying that Order 21, Rule 17(2) does not apply. Next it is urged that the decree-holders claimed post-diem interest and that therefore the execution application is not in accordance with law. This depends upon the construction of the decree with which I shall deal later on. As I am deciding that post-diem interest is claimable under the decree, this objection has no force.

5. The next objection is that some amounts which had already been collected were not certified and were not given credit to. The mere fact that more money was claimed than what was due does not in my opinion render the application one not in accordance with law. A decision of the Patna High Court in 10 Pat 1831 is brought to my notice. There the decree-holder was adjudged to be entitled only to one-sixth of the decree amount. This was in the first execution application. In a later execution application instead of claiming that one-sixth alone which he was adjudged to be entitled to in the previous execution petition, he claimed the whole amount. That petition was for some reason dismissed and a still later application was filed and the question was whether the intermediate application saved limitation. The learned Judges held that because it bad been finally decided that the decree-holder was entitled to one-sixth he had no right to claim recovery of the whole amount by the intermediate application and that therefore the said application was not in accordance with law. It seems to me with great respect that that decision is open to serious objection. The mere fact that a decree-holder claims more than what he is entitled to is not a ground for saying that the application itself is not in accordance with law. It is not every defect contained in an execution application which renders it unavailing for the purpose of saving limitation under Article 182, Clause 5. This apart, there is no order in this case by which the Court adjudged that the decree-holders are not entitled to post-diem interest. Therefore the decision in Durga Prasad v. Mt. Powdharao Kuer ('31) 18 : AIR1931Pat274 does not apply and apart from it I see no justification for the contention that the mere fact that the decree-holder claims more than what he is entitled to according to the judgment-debtor renders the application itself one not in accordance with law.

6. Then the fact that plaintiff 1 did not get himself appointed as next friend, it is urged, is a circumstance which would render the application not in accordance with law. There is no provision in the execution chapter that when plaintiff 1 attained majority, he should get himself appointed as next friend before filing the execution application. It is in the execution petition that be has to describe himself as the next friend and file an affidavit or an application to get himself recognized as next friend. This objection again has no force. I therefore hold that the application filed on 16th August 1929 was one in accordance with law and it saves limitation. The final order on that application was passed on 16th January 1930 dismissing it for the reason that security was not furnished for the amount already drawn by the plaintiffs' mother or by plaintiff 1. This is not a case in which it can be said that the application was dismissed for non-prosecution, in which case the question might arise whether such an order would be a 'final order' within the meaning of Article 182(5). Going to the next application which was filed on 1st March 1930, the objections taken are that post-diem interest was claimed and that satisfaction of the amount already recovered was not reported. I have dealt with the question of interest and the remarks made by me as regards the previous application apply to this. So also with regard to the omission of the plaintiffs to give credit to the amount already recovered. I hold therefore that the fourth execution application is one in accordance with law and the order dated 30th June 1930, dismissing it for the reason that plaintiff 1 did not deposit the amount as required by the previous order is a final order on this execution petition. The present application was filed within three years of this date and therefore there is no reason for holding that the present application is barred.

7. Some other questions are raised which may be disposed of before remanding the execution application for further orders. It is contended by the learned Counsel for the respondents that under the terms of this decree post-diem interest cannot be claimed by the decree-holders. The material portions of the decree have already been set out. The decree was passed on 31st March 1922. Six months' time was given for payment of the amount agreed upon, and the compromise decree states that Rs. 1700 with interest from date of the plaint to the date of the decree shall be paid within six months from that date. There is no provision that after the expiry of six months the amount shall carry interest. But in such cases I think the principle laid down in the case of contracts between parties in the decisions reported in Nityananda Patnayudu v. Sri Radha Cheranadeo (1997) 20 Mad. 371 and in Mathura Das v. Raja Naraindar Bahadur Pal (1997) 19 All. 39 applies. As pointed in Nityananda Patnayudu v. Sri Radha Cheranadeo (1997) 20 Mad. 371 there is nothing in the document to indicate that the parties did not intend that interest should be paid after the expiration of the period, and it is plainly the intention of the parties in this case that interest should continue to be paid until liquidation of the debt. There is absolutely no reason to sup pose that the parties intended that the defendant should benefit by his own default and escape payment of interest if he did not pay the amount in time.

8. It is urged by the learned Counsel for the respondents, placing reliance on the decision of the Calcutta High Court in Naresh Chandra v. Krishna Bhobini Dasi : AIR1926Cal505 that the principle laid down therein applies to this case. There the decree was one passed after contest and simply directed payments of certain sums of money on certain dates and contained no provision for interest. It was held that the executing Court has no jurisdiction to give interest when the decree itself is silent about interest. It is doubtful whether the decision would be the same, if for example the decree had provided that the defendant should pay the sum adjudged within a particular time with interest and nothing more was said. It would be a question whether in such a case the executing Court could not take it that the decree provided for interest subsequent to the time fixed. However that might be, the Court in this case, in passing the decree which it did, did no more than adopt the contract between the parties, the parties having settled privately the amount to be paid. The terms of the compromise were reduced to writing and placed before the Court and the Court simply adopted it after sanctioning it as being beneficial to the minor plaintiffs. This is a case to which the rule that a compromise decree partakes of the nature of a contract is applicable and I hold therefore that under this decree post-diem interest can be claimed by the plaintiffs at the rate of 6 per cent, per annum which is the rate fixed for the period between the date of the plaint and the date of the decree and I do not think it makes any difference that no provision was made for interest between the date of the decree and the date when the amount was payable.

9. The next question that is urged is, that various sums of money amounting in all to Rs. 1183-1-0 were paid from time to time and that credit ought to be give a by the plaintiffs in the present execution application. It is said that Rs. 537 of this sum was paid into the hands of the mother when she was the next friend of the plaintiffs and that Rs. 636 was paid to plaintiff 1. It is also said that plaintiff 1 actually certified that he had received his full share of the decree amount and had filed a petition asking the Court to enter up satisfaction so far as his own share is concerned. It is therefore contended that so far as his share, at any rate is concerned, satisfaction should be recorded and that he ought not to be allowed to execute the decree to that extent. With reference to this last question I agree with the contention of the learned advocate for the respondents that plaintiff 1 should not be permitted to execute the decree as regards his own share. In the execution application filed on 16th August 1929 he admitted receipt of the amount in question and prior to it he had already filed an application for entering up satisfaction to the extent of his share.

10. On that occasion the Court thinking that he ought not to be permitted to report satisfaction because it would be prejudicial to the interests of the other plaintiffs, declined to enter satisfaction. But that is no ground for allowing the plaintiffs to execute the decree for the full' amount. There is no limitation for a decree-holder to certify and if the decree-holder really had certified at one stage, the judgment-debtor is entitled to take advantage of it and request the executing Court to record satisfaction to that extent. Satisfaction will therefore be entered as regards plaintiff 1's one-third share. As regards the share of plaintiffs 2 and 3, it is said that some amounts were paid into the mother's hands, but she had no right to receive the amount out of Court without giving security. These payments are therefore not binding on the minor sons and these amounts cannot be given credit to. Again it is said that plaintiff 1 admitted these payments in the execution application filed on 16th August 1929, but it is admitted that so far as this sum of Rs. 537 is concerned, it was paid into the mother's hands. Plaintiff 1 may be the karta or manager of the family but he did not receive the amount. Therefore his admission, that a previous next friend had received the amount would not in my opinion entitle the judgment-debtors to have satisfaction entered as regards the minors' shares, particularly because no security was given by the person who received the amount. The orders of both the lower Courts are set aside and the execution application is remanded for further execution as regards the shares of plaintiffs 1 and 2. Bach party will bear his costs in this and in the lower Appellate Court. The costs of the first Court will abide and follow the result. Leave to appeal is refused.


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