Research › Browse › Judgment

Kerala High Court · body

1965 DIGILAW 389 (KER)

Subramonia Iyer v. Gopala Pillai

1965-12-14

ANNA CHANDY, S.VELU PILLAI, V.P.GOPALAN NAMBIYAR

body1965
Judgment :- 1. In view of the question arising for decision, it is not necessary to relate all the facts of this ancient litigation. The appeal arises in execution of a decree which was obtained by the appellant, mortgagee of certain properties, on the basis of a lease back to the mortgagor, for recovery of possession with arrears of rent and future rent. The decree was passed on the 10th March, 1928 under the Travancore Civil Procedure Code. The question which arises for decision is whether the appellant can recover future interest, that is interest subsequent to the date of the decree, without any limit as under S.34 (1) of the Indian Civil Procedure Code or only subject to the limit imposed by S.31 (3) of the Travancore Civil Procedure Code. S.31 (1), (2) and (3) of the latter may be usefully quoted and are as follows: (1) In suits for money, no Court shall, in respect of the period antecedent to the institution of the suit, allow in its decree a higher rate of interest than twelve per cent per annum and the amount adjudged as interest for such period shall not exceed one-half of the principal amount sued for. (2) Notwithstanding anything contained in Act I of 1010, where the decree is for the payment of money, the Court may, in addition to the interest awarded under sub-section (1) decree payment of interest on the principal sum adjudged of such amount as may accrue at a rate not exceeding twelve per cent from the date of suit to the date of decree. (3) Notwithstanding anything contained in Act IV of 1010, where the decree is for the payment of money, the Court may, in addition to the interest decreed under sub-sections 1 and 2, decree future interest at a rate not higher than nine per cent, on the aggregate sum adjudged from the date of decree to the date of payment or to such earlier date as the Court thinks fit provided, however, that the amount of interest accruing from the date of the decree shall not exceed the aggregate sum adjudged." S.34 (2) of the Indian Code also may be quoted and is as follows: "Where such a decree is silent with respect to the payment of further interest on such principal sum from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefor shall not lie." Under S.31 (3) of the Travancore Cods, future interest shall not exceed the aggregate sum adjudged. Owing to several proceedings which have taken place since the date of the decree, which it is unnecessary to relate, future interest accrued under the decree has exceeded the limit, but the appellant sought by his execution petition to recover the entirety of it. This was opposed at first by the official receiver in whom the interest of one of the judgment-debtors had vested on his insolvency and subsequently on annulment of insolvency, was opposed by the respondent, who is the legal representative of the judgment-debtor. The Travancore Code which became the Travancore-Cochin Code on integration of States was by the Code of Civil Procedure (Amendment) Act, 1951, Central Act 2 of 1951, replaced by the Indian Code. 2. The contentions of the appellant are two-fold, first that the decree being one for the recovery of possession and of rent past and future, is not a decree for the payment of money within the meaning of S.31 (3) of the Travancore Code and of S.34 (i) of the Indian Code, and second, that no right had accrued to the respondent in respect of the limit of future interest set by S.31 (3) of the Travancore Code so as to be saved by the operation of S.20 of Act 2 of 1951, notwithstanding the repeal of the Travancore or Travancore-Cochin Codes. 3. 3. On the first contention learned counsel for the appellant made a classification of decrees into decrees for money, decrees for or relating to immovable property, & decrees for movable properties. We were taken through some of the provisions of the Civil Procedure Code which deal with such decrees, and in particular, Order XX R.9 to 12 and Order XXI R.2 and 18 of the Indian, Code. One of the rules relied on, Order XXI R.30, which provides: "Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in the civil prison of the judgment-debtor, or by the attachment and sale of his property, or by both", seems really to go against the appellant. The rule is related to S.51, the proviso to which uses the words "decree for the payment of money" and provides certain safeguards subject to which alone a judgment-debtor may be committed to the civil prison. The argument of learned counsel if pushed to the logical extent implies, that in a decree such as the one before us for the realisation of money by way of rent also personally from the judgment-debtors, detention in civil prison cannot be ordered, and even if it can be ordered, the safeguards under the proviso are not applicable; this cannot be and learned counsel did not contend for such a position. We conceive, that the proviso to S.51 was meant to afford protection to a judgment-debtor under a decree, in which there is a money claim to enforce personally against him. The contention that "a decree for money" or "for the payment of money" means for the purpose of S.31 (3) of the Travancore Code or of S.34 (1) of the Indian Code, a decree simpliciter for money, in which no other relief is granted, does not appear to be bound. 4. In the Travancore Code, the provisions of Order XXXIV, as they now obtain in the Indian Code, did not find a place. Under Order XXXIV R.11, interest may be decreed in suits for foreclosure, sale, or redemption, where interest is legally recoverable; this rule does not apply to interest which may be allowed in a decree under Order XXXIV R.6 for recovering the balance of the mortgage amount, if any, remaining unrealised after the sale of the mortgaged property. Under Order XXXIV R.11, interest may be decreed in suits for foreclosure, sale, or redemption, where interest is legally recoverable; this rule does not apply to interest which may be allowed in a decree under Order XXXIV R.6 for recovering the balance of the mortgage amount, if any, remaining unrealised after the sale of the mortgaged property. To such cases, S.34 of the Indian Code has been applied in Chatti Narasimhamurti v. Narayanasetti Jagannaikulu AIR. 1959 Andhra Pradesh 619 & in Firm Daulat Ram v. Gurbaksh Singh AIR. 1949 East Punjab 213. In the Travancore Code, S.31 was the only provision under which the court could allow in its decree, interest on the amount of the decree for the period subsequent to the date of the decree. The vexed question which has arisen under the Indian Code, whether a mortgage decree, irrespective of personal relief being granted or not, is a decree for the payment of money under S.73 of the Indian Code, does not arise in relation to S.31 of the Travancore Code; on the authority of the cases cited it does not arise under S.34 of the Indian Code either, in respect of the amount realisable personally. 5. The language of S.31 (3) of the Travancore Code does not compel us to accept the view, that it is restricted in its application to a decree solely for money as contended. The structure of S.31 has to be borne in mind. Sub-section (1) which relates to the period antecedent to the date of the suit opens with the words "in suits for money"; sub-section (2) is supplemental and relates to the next stage, the period between the date of the suit and the date of the decree. Sub-section (3) marks the subsequent stage, the period subsequent to the date of the decree in the "suit for money" which has now culminated in a decree. Thus the term "decree for payment of money" occurring in sub-section (3) is not to be divorced from the term "suit for money". The term "suits for money" is comprehensive to comprise all proceedings to enforce money claims, whether such claims are combined with others or are ancillary to them or not. Thus the term "decree for payment of money" occurring in sub-section (3) is not to be divorced from the term "suit for money". The term "suits for money" is comprehensive to comprise all proceedings to enforce money claims, whether such claims are combined with others or are ancillary to them or not. The term "suits for money" has been interpreted by a full bench of the Travancore High Court in Ouseph Ouseph v. Arya Antharjanom 1943 T. L. R.509 at p. 522 to mean, "all proceedings which have for their object the determination of the right to a certain sum of money or the determination of the exact amount of money to which a party may be entitled". There cannot be any difficulty in holding that a decree for the payment of money under sub-section (3) is related to the suit for money as interpreted. In S.34 of the Indian Code, the corresponding words are, "where and in so far as a decree is for the payment of money" which is equivalent to "to the extent to which the decree awards payment in money". The decree in the present case besides being for the recovery of possession, is also for the personal payment of rent, past and future, by defendants 1 and 2, for its realisation from the assets of defendants 1 to 5, and as charged on the equity of redemption of the property and on the funds in the hands of the receiver. For the reasons stated, the decree has to be held to be one for the payment of money within the meaning of S.31 (3) of the Travancore Code. This sufficiently answers the first contention of learned counsel. 6. There is no substance in the second contention. For the reasons stated, the decree has to be held to be one for the payment of money within the meaning of S.31 (3) of the Travancore Code. This sufficiently answers the first contention of learned counsel. 6. There is no substance in the second contention. The relevant part of S.20 of Central Act 2 of 1951 reads: "If, immediately before the date on which the said Code comes into force is any Part B State, there is in force in that State any law corresponding to the said Code, that law shall on that date stand repealed: Provided that the repeal shall not affect xx X x (b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed, or xx x" The short point to decide is, whether the immunity of the debtor from liability for interest in excess of the limit prescribed by S.31(3) of the Travancore Code, is a right accrued in his favour. We have no doubt that it is, and a valuable and a substantive right. In Parameswaran Pillai Vasudevan Pillai v. Jacob Perumal A. I. R.1956 T. C. 236, a case under S.31(1) of the Travancore Code, it was held that the immunity from liability for any excess interest for the period antecedent to the suit was a valuable right which the defendant had acquired and which could not be taken away in consequence of the repeal of the Travancore Code by the Indian Code. Learned counsel attempted to draw a distinction between subsections (1) and (2) and sub-section (3) of S.31, because under the former the interest realisable is quantified in the decree, while under the latter it remains an uncertain quantity, whether or not the limit is exceeded, depending upon the time factor. This, we think, is not a test for deciding whether a right had accrued or not in favour of the debtor under the decree as passed. The distinction urged is unsound. The Travancore High Court held in the full bench case cited, of Ouseph Ouseph v. Arya Antharjanam,1943 TLR. 509, that S.31 of the Travancore Code is a substantive provision of law though it occurs in a statute relating to procedure. 7. The distinction urged is unsound. The Travancore High Court held in the full bench case cited, of Ouseph Ouseph v. Arya Antharjanam,1943 TLR. 509, that S.31 of the Travancore Code is a substantive provision of law though it occurs in a statute relating to procedure. 7. Learned counsel, relied on the following observations in Abbot v. The Minister for Lands 1895 A. C. 425 at p. 431: "They think that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a 'right accrued' within the meaning of the enactment," and contended, that the right of the respondent, such as it was, to take advantage of S.31(3) of the Travancore Code in the event of interest exceeding the prescribed limit, which is contingent in nature cannot be regarded as a right accrued which is saved by S.20 of Act 2 of 1951. In Sakharam v. Manikchand A. I. R.1963 S. C. 354 at p. 356 the Supreme Court after considering the above passage observed: "It is thus clear that the context in which the observations relied upon by the respondent as quoted above, were made is entirely different from the context of the present controversy. That decision is only authority for the proposition that the mere right, existing at the date of a repealing statute, to take advantage of provisions of the statute repealed is not a 'right accrued' within the meaning of the usual saving clause. In that ruling, their Lordships of the Privy Council assumed that the contingent right of the original grantee was a right but it was not a right accrued within the meaning of the repealed statute." This answers the contention of learned counsel, that the right to plead S.31(3) is no right at all because it is contingent. The Supreme Court observed further: "It was held not to have accrued because the option given to the original grantee to make additional purchases had not been exercised before the repeal. In other words, the right which was sought to be exercised was not in existence at the date of the repealing Act which had restricted those rights," and distinguished Abbot's case. In other words, the right which was sought to be exercised was not in existence at the date of the repealing Act which had restricted those rights," and distinguished Abbot's case. In the present case the right under S.31(3) is by way of immunity against excess interest. The right that future interest realisable under the decree shall not exceed the limit is a right which had accrued to the respondent by virtue of the decree and on the date of the decree. 8. The matter may be viewed in another perspective. When the decree was passed, as stated, S.31(3) of the Travancore Code was in force. There is nothing in the decree to suggest, that S.31 (3) was in any way contravened, even if such contravention was possible. The decree being silent as to the quantum of future interest, it can only be deemed, that the court intended to pass a decree in conformity with S.31(3). As a matter of construction it must be deemed, as if the provision in S.31 (3) as to the' limit of future interest has been incorporated in the decree itself and formed part of it. A similar view has been taken in V. Sreekanta Iyer v. Suriya Vadivoo Lekshmi Ammal (21 T. L. J. 1033) and Krishna Kammath Ramachandra Kammath v. Narayanan Kuttan 24 T. L. J. 338. In the former case, the decree was passed when Act 4 of 1010 was in force, according to which future interest was not to exceed half the amount of the principal; the court held as a matter of construction, that the decree had allowed future interest only up to a moiety of the principal and that the change in the law brought about by S.31 (3) of the Travancore Code had no effect on the amount of interest realisable under the decree. 9. It therefore follows, both on a construction of the decree and on the application of S.20 of Central Act 2 of 1951, that the respondent had acquired a vested right the decree, which can in no way be affected by the passing of S.34 (I) of the Indian Code. The Subordinate Judge was right in his conclusion. No other point was urged before us. In the result, this appeal is dismissed with costs. Dismissed.