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Shyama Charan De Tahbildar and ors. Vs. Protap Chandra Das and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1930Cal349
AppellantShyama Charan De Tahbildar and ors.
RespondentProtap Chandra Das and ors.
Cases ReferredBakar Sajjad v. Udit Narain Singh
Excerpt:
- .....plaintiffs,and there were other directions therein with which we are not concerned.2. in 1920 the decree-holders applied for execution for a sum of rs. 3,681-1-0 whether they meant to include in this amount any interest after the period of grace is a matter on which the two courts below are not in agreement. the court of first instance was of opinion that they did and the court of appeal below that they did not. the point is not clear : all that appears is that a small amount in excess of interest up to the date of grace was included in it though not the whole amount that would be due on calculation of the interest at 6 per cent for the period from the date of grace to the date of the application for execution. this execution case was dismissed, but subsequently the judgment-debtors.....
Judgment:

1. The facts of this case are quite simple. In 1918 the decree-holders obtained a preliminary decree, in a mortgage suit. The ordering portion of the judgment therein directed that after expiry of the period of grace interest would run on the amount due at 6 per cent per annum. In the decree drawn up in accordance with the judgment this portion of the order was omitted and interest was allowed only up to the expiry of the period of grace. In the final decree drawn up about a, year later it was provided:

that the sum of Ra. 3,290-8-0 as payable under the said preliminary decree together. with Rs. 284-12-0 as the costs of the suit as specified in the said preliminary decree and further interest up to the date of payment at the rate specified in said decree would be payable to the plaintiffs,

and there were other directions therein with which we are not concerned.

2. In 1920 the decree-holders applied for execution for a sum of Rs. 3,681-1-0 whether they meant to include in this amount any interest after the period of grace is a matter on which the two Courts below are not in agreement. The Court of first instance was of opinion that they did and the Court of appeal below that they did not. The point is not clear : all that appears is that a small amount in excess of interest up to the date of grace was included in it though not the whole amount that would be due on calculation of the interest at 6 per cent for the period from the date of grace to the date of the application for execution. This execution case was dismissed, but subsequently the judgment-debtors made payments which aggregated a substantial amount. The decree-holders then again applied for execution for realization of the balance, and this time they expressly claimed interest at 6 per cent per annum from the date of grace. The judgment-debtors objected to this claim for interest. This objection was rejected by the Court of first instance but has been upheld on appeal. Hence this appeal by the decree-holder.

3. A good deel of technicality has been introduced into the case on behalf of both sides, for which, however, there is some justification in the view which the District Judge has expressed. The question in the first instance, in our judgment, is a question of construction of the final decree.

4. There can be no question that the final decree meant to provide for interest after the expiry of the period of 'grace and till payment; it expressly said so. The rate at which such interest was to be calculated was in the words of the final decree 'the rate specified in the preliminary decree,' but there was no rate specified for this interest in the preliminary decree; two rates were mentioned therein but for different purposes, i.e., 9 per cent compound with yearly rests and 6 per cent simple, the former payable under the contract and the latter only for costs. So the case was one of pure omission land there was no question of ambiguity. In that view the case of Bakar Sajjad v. Udit Narain Singh [1899] 21 All. 361, upon which a good deal of reliance has been placed by Mr. Chakravarty in his arguments will not help him. It being a simple case in which the preliminary decree was not in accordance with the judgment which it had to follow, and failed to reproduce the decretal order in that judgment, we do not understand why the decree-holders should not avail of the easy course of applying for amending the preliminary decree in order to bring it on a line with the judgment. The only apprehension that he may have is that a future execution may be barred, but that can be avoided by keeping the present execution proceedings pending and giving the decree-holders sufficient opportunity to avail of this remedy. We propose to make that order.

5. Then a question arises as to whether in view of the application for execution filed in 1920 the decree-holders are competent to claim this interest. It is conceded by the decree-holders that in that application he did not claim the whole amount of interest which had accrued due till then subsequent to the expiry of the period of grace. It is urged on behalf of the judgment-debtors that no such interest was claimed at all. The consequence of both the positions is the same. It is well-settled that a portion of an entire decree for which execution was not once claimed cannot form part of a subsequent claim in execution. The decree-holders, therefore, are not entitled to claim any interest for the period from the date of grace to the date of his application in 1920. There is, however, no reason why he should not get interest for a subsequent period.

6. The result is that this appeal is allowed. The orders of the Court below are set aside. The execution proceedings will stand as pending and a reasonable time on calculation of interest will be given to the decree-holders to apply for and obtain the necessary amendment of the preliminary decree and when they have done so the execution will go on for the period subsequent to the date of the application for execution made in 1920.

7. There will be no order for costs in this appeal.


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