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K.M. Bose and Co. Vs. Allen Brothers - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1927Cal72,97Ind.Cas.479
AppellantK.M. Bose and Co.
RespondentAllen Brothers
Excerpt:
- .....to withdraw it. in. the present case there was no such unconditional deposit of the money and the money deposited by the judgment-debtor was not unconditionally at the disposal of the decree-holder. he was under the necessity, if he desired to withdraw the amount, of furnishing security; in that view i do not think that the principles of order 24, rules 1, 2 and 3, apply to the present case except so far as regards the sum of rs. 3,000 which was at the disposal of the decree-holder and which he actually withdrew.5. i am, therefore, of opinion that the decree-holder is entitled to interest on the whole amount up to the date when notice that it has been deposited was received by the decree-holder and on this sum less rs. 3,000 up to the date when the money was at the disposal of the.....
Judgment:

Cuming, J.

1. This appeal arises out of certain proceedings in execution. It would appear that the appellant brought a suit against the respondent for the balance due on account and on the I9fch July 1921, obtained a decree for the amount of Rs. 14,547-9-81/2. The judgment-debtor appealed to the High Court and Rs. 14,719-14-6 was deposited by the judgment-debtor under an order of this Court with the stipulation that the decree-holder might withdraw the amount on giving security or withdraw up to Rs. 8,000 without giving any security. This money was deposited on the 16th September 1921. On the 7th November 1921, the decree-holder, in conformity with the order of this Court, withdrew the sum of Rs. 3,000 which he was allowed to withdraw without giving any security. The appeal was decided, by this Court on the 4th March 1924, the appeal being dismissed and the order of the lower Court upheld. Then, on the 13th May 1924, the appellant withdrew the balance that was in deposit, namely, Rs. 11,719-14-6, and on the 30th April 1924 the executing Court ordered that as the entire amount under the decree had been deposited in Court by the judgment-debtor the execution case was dismissed in full satisfaction. The decree-holder applied for a review of this order inasmuch as the interest on the amount in deposit was not allowed to him. But his application was refused. The decree-holder had also put in an application for the execution of the decree to the extent of the costs allowed by the High Court and this was disallowed by the executing Court. The order passed was that:

the fresh petition of execution filed by the decree-holder cannot, therefore, be entertained in its present form, and is rejected.

2. Against both these orders the appellant has appealed to this Court and he contends that he is entitled to the interest on the decretal amount up to the date it was available to him, and further that he is entitled to execute the decree for costs of the appeal to the High Court. The judgment-debtor-respondent contends, on the other hand, that the decree-holder is not entitled to interest. His contention would seem to be that as he, the judgment-debtor, had deposited the money in Court the decree-holder is not entitled to interest on the sum which was deposited even though the deposit was not an unconditional one, but the withdrawal by the decree-holder was conditional on the decree-holder's furnishing security to a certain amount. In support of his contention he relies on Order 24, Rules 1, 2 and 3. Rule 1 of this order provides that:

the defendant in any suit to recover a debt or damages may, at any stage of the suit, deposit in Court such sum of money us he considers a satisfaction in full of the claim.

3. Rule 2 runs thus:

Notice of the deposit shall be given through the Court by the defendant to the plaintiff, and the amount of the deposit shall (unless the Court otherwise directs) be paid to the plaintiff on his application;

and Rule 3 runs as follows:

No interest shall be allowed to the plaintiff on any sum deposited by the defendant from the date of the receipt of such notice, whether the sum deposited is in full of the claim or falls short thereof.

4. The learned advocate for the judgment-debtors respondents contends that in view of Rule 3 the decree-holder is not entitled to any interest. In the first place I may say that I am not satisfied that Order 24, Rules 1, 2 and 3, do apply to proceedings in execution. Primarily they would seem to apply to original suits in which, in order to save costs, an opportunity is given to the defendant to deposit so much of the claim as ho admits in Court, and in such a case the plaintiff will not be allowed costs. Even if we extend the principle of this order to execution proceedings still I do not think that they would help the judgment-debtor. The provisions of this order contemplate, I think an unconditional deposit of a sum of money in Court by the defendant which sum of money is at the disposal of the decree-holder if he desires to withdraw it. In. the present case there was no such unconditional deposit of the money and the money deposited by the judgment-debtor was not unconditionally at the disposal of the decree-holder. He was under the necessity, if he desired to withdraw the amount, of furnishing security; in that view I do not think that the principles of Order 24, Rules 1, 2 and 3, apply to the present case except so far as regards the sum of Rs. 3,000 which was at the disposal of the decree-holder and which he actually withdrew.

5. I am, therefore, of opinion that the decree-holder is entitled to interest on the whole amount up to the date when notice that it has been deposited was received by the decree-holder and on this sum less Rs. 3,000 up to the date when the money was at the disposal of the decree-holder. The parties have agreed that in the event o our holding as I have held above, that interest is due, that the following amounts are now due to the decree-holder; the balance due under the original decree Rs. 1,950. As this is interest it will not bear any further interest, further that the decree-holder is entitled to the costs awarded to him by the decree of the High Court, namely, Rs. 361-14-7, this last amount will bear interest at the rate of six per cent, per annum from the date of the decree of the High Court to the date of realization. Further the decree-holder will get the costs of the Rule, Rs. 52, but there will be no interest on the costs pf the Rule.

6. The result is the appeal is decreed in the above terms. Execution proceedings will now proceed in the lower Court with these modifications. There will be no order as to the costs of this appeal. No order is necessary on the application.

Page, J.

7. I agree.


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