Research › Browse › Judgment

Delhi High Court · body

1969 DIGILAW 14 (DEL)

ISHAR NATH TOPA v. SURENDER SINGH AHLUWALIA

1969-01-14

O.M.PRAKASH

body1969
Om Prakash, J. ( 1 ) THIS objection-petition has been filed by the successors-in-interest of Shri Surender Singh Ahluwalia, judgment-debtor. ( 2 ) A suit was filed against Shri Surender Singh Ahluwalia, Judgment-debtor, for the recovery of Rs. 30,423. 50 paise on the basis of mortgage. It was alleged that the judgment-debtor had mortgaged a house on the basis of a registered mortgage deed dated the 14th March, 1947 for Rs. 25. 000. 00- which amount had been received by him in cash and had agreed to pay back the amount with interest. It was further alleged that the judgment-debtor had paid only a sum of Rs. 150. 00 towards interest and had paid nothing towards the principal. The mortgagees claimed to recover Rs. 30,423. 50 paise principal and inerest, by the sale of the mortgaged property. The suit was contested by the judgment-debtor. He had raised various pleas. ( 3 ) THE learned Subordinate Judge, who was seized of the suit, passed a preliminary decree in favour of the mortgagees for the recovery of Rs. 30,423 -50 paise with costs and future interest at the rate of Rs. 6 per cent per annum from the date of the suit till realisation. The judgment-debtor was given six months, time to pay the decretal amount. It was ordered that if he failed to do so, the mortgagees were entitled to apply for a final decree to realise the decretal amount by the sale of the mortgaged property. ( 4 ) THE judgment-debtor failed to pay the decretal amount as ordered. The mortgagees put in an application for the passing of the final decree. The final decree was passed on the 23rd January, 1962. ( 5 ) THE mortgagees took out execution of the decree, praying tha mortgaged property be sold. ( 6 ) THE legal representatives of the judgment-debtor, who had died during the pendency of the execution proceedings, have filed the present objections under section 30 of the Punjab Relief of Indebtedness Act (hereinafter referred to as the Act), It is pleaded, in the objections that the judgment-debtor had borrowed a sum of Rs. 25,000. 00- only and the mortgagees were trying to recover more than double the amount actually advanced, which they could not do in view of the provisions of section 30 of the Act. It is, further, pleaded that the mortgaged property is worth Rs. 25,000. 00- only and the mortgagees were trying to recover more than double the amount actually advanced, which they could not do in view of the provisions of section 30 of the Act. It is, further, pleaded that the mortgaged property is worth Rs. 1 lakhs and that the legal representatives may be permitted to sell the property privately. ( 7 ) THE objections have been opposed on behalf of the mortgagees. It is averred that the provisions of section 30 of the Act do not apply and that the mortgagees were entitled to recover more than double the amount, which had been actually advanced. ( 8 ) BY my order dated the 26th November, 1968, I rejected the prayer of the legal representatives of the judgment-debtor for permission to sell the mortgaged property privately. The following issue was settled with respect to the plea about section 30 of the Act :- "whether the decree-holder is not entitled to recover more than Rs. 50,000. 00 (O. P. Applicants-judgment-debtors)" ( 9 ) THE parties have not led any evidence on the issue. The learned counsel for the parties have addressed arguments. ( 10 ) BEFORE advertising to the contentions of the learned counsel for the parties, the relevant provisions of section 30 of the Act may be set forth :- "30 (1)-IN any suit brought after the commencement of this Act in respect of a "debt as defined in section 7, advanced before the commencement of this Act no court shall pass or execute a decree or give effect to an award in respect of such debt for a larger sum than twice the amount of sum found by the Court to have been actually advanced, less any amount already received by a creditor in excess of the amount due to him under clause (e) of sub-section (2) of section 3 of the Usurious Loans Act, 1918. " ( 11 ) IT is common ground, between the parties, that an amount of Rs. 25,000. 00 had been advanced in cash to the judgment-debtor against the mortgage of the property and that the amount in excess of the double amount, namely, Rs. 50,000. 00 sought to be recovered consists of furture interest only, awarded by the Court at the time of passing the decree. 25,000. 00 had been advanced in cash to the judgment-debtor against the mortgage of the property and that the amount in excess of the double amount, namely, Rs. 50,000. 00 sought to be recovered consists of furture interest only, awarded by the Court at the time of passing the decree. The disagreement, between the parties, is about the point whether future interest awarded by the Court at the time of passing the decree can be taken into consideration while determining double the amount or not. The contention for the legal representatives of the judgment-debtor is that it should be taken into consideration while according to the mortgagees, it should not be. ( 12 ) A similar point had arisen for decision in Nagin Singh and others v. L. Jagan Nath and another. It was observed :- "it is contended on behalf of the appellants that in as much as the decretal amount including future interest which will ultimately be recovered from the mortgaged property would traverse the limit set by s. 30 (1), the decree as made by the trial Judge is bad in law. We, however, consider that the term decree as used in sub-s. (l) has no reference to future interest and consequently the decree as made is not hit by this sub-section. It will be seen that this subsection is headed "damdupat" and in substance enacts the principles underlying that famous doctrine of Hindu Law. It is further obvious that interest is separately provided for under s. 34, Civil Procedure Code. " ( 13 ) THE learned Judges noted the provisions of s. 34, Civil Procedure Code and observed:- "under this section a question arose whether future interest was covered by the damdupat rule of Hindu Law and it was decided that the Court could under this section award further interest to the lender from the date of the suit though the aggregate interest may thereby exceed the original sum, the reason being that the rule of damdupat ceases to operate from the date of the suit. (Mulla s Code of Civil Procedure, 11th Edn. , p. 146 ). Exactly the same rule will apply under s. 30 (1 ). (Mulla s Code of Civil Procedure, 11th Edn. , p. 146 ). Exactly the same rule will apply under s. 30 (1 ). Even otherwise, under sub- r. (l) of r. 4 of O. 34, Civil Procedure Code, it is contemplated that the Court will declare by the preliminary decree the amount due to the plaintiff" together with such amount as may have been adjudged due in respect of subsequent costs, charges, expenses and interest", and this evidently shows that interest in something apart from the decree. In calculating, therefore, the amount that can be decreed under Sub-s. (l) of s. 30, the future interest allowed on the decree is not to be taken into consideration at all. " ( 14 ) THE above observations, with which I am in respectful agreement, fully apply to the present case. It may further be added that the amended clause (b) of Rule 11 of Order 34, Code of Civil Procedure, empowers the Court to award future interest till the date of realisation, in mortgage decree. ( 15 ) THE contention of the learned counsel for the legal representatives that future interest allowed by the Court at the time of passing of a mortgage decree is to be counted while determining double the amount cannot be accepted. ( 16 ) THE learned counsel for the legal representatives has cited Firm Jog Dhian Jiwan Das v. L. Jog Dhian and Hukam Singh and others v. Duli and others. The authorities cited are of no assistance to the legal representatives. The question in the Lahore authority was whether mere omission to raise the objection about section 30 during the trial stage would debar a person from raising that objection after the decree had been passed against him. It was held that the person was not debarred from raising the objection. In the present case, there is no plea that the legal representatives cannot raise the objection about the applicability of section 30 in the execution proceedings. In Hukam Singh and others v. Duli and others it was held that the legal representatives can take advantage of the provisions of section 30. In the present case, there is no plea that the legal representatives cannot raise the objection about the applicability of section 30 in the execution proceedings. In Hukam Singh and others v. Duli and others it was held that the legal representatives can take advantage of the provisions of section 30. ( 17 ) THE learned counsel for the legal representatives had argued that sub-section (1) of section 30 was susceptible of the interpretation sought to be put upon it by him so far as it not only prohibits the passing of the decree but also the executing of the decree which is for a larger sum than twice the amount found by the Court to have been actually advanced. This argument was also advanced in 1944 Lahore 422 supra. The argument was repelled with the following observations:- "but if the sub section is interpreted in the manner suggested by the appellants counsel, it would evidently lead to an absurdity. It is clear that a decree when executed even includes costs. Could it be the intention of the Legislature to take into consideration costs of the suit also when a decree was to be made on a sum actually advanced ? Evidently not, otherwise the decretal amount would vary with each Court in the different stages "of the same litigation, if the original decree is taken on appeal up to the final Court. " ( 18 ) THE result is that future interest, awarded by the Court at the time of passing of a mortgage decree, cannot be taken into consideration while determining the double amount under section 30 (1) of the Act. The issue, struck, is held against the legal representatives and the objection petition is dismissed with costs. Lawyer s fee Rs. 50. 00