Research › Browse › Judgment

Kerala High Court · body

1990 DIGILAW 5 (KER)

State Bank of Travancore v. Devassia Joseph

1990-01-05

RADHAKRISHNA MENON

body1990
Judgment :- 1. The decree holder is the revision petitioner. 2. The order under challenge is one by which the executing court has dismissed I.A.1169/80, a petition filed by the decree holder under S.152 C.P.C. to incorporate a provision for future interest in the judgment and decree, which, according to the petitioner, was inadvertently or accidentally omitted to be incorporated in the judgment and decree. The execution petition also stands dismissed by the order. 3. The two points that survive for consideration and pressed before me are: (1) whether the court below was justified in dismissing the application under S.152 C.P.C.? (2) whether the claim of the petitioner for the benefit of sub-section 8 of S.7 of Act 11/1970 is sustainable? 4. Point No.1: Facts touched upon by the learned counsel for the petitioner in this regard can be stated thus:-The suit was for realisation of the amount due under the chitty hypothecation bond executed by defendants 1 and 2, with future interest. Though the defendants did not contest the claim for future interest, there was no direction either in the judgment or in the decree for payment of future interest. This is a clerical mistake arising from an accidental slip. The decree holder therefore moved the application under S.152 C.P.C. to incorporate a provision in the judgment as also in the decree for future interest. 5. The learned counsel for the petitioner then argued that inasmuch as the respondents had not opposed the claim for future interest, it must be deemed that the court had granted that relief. But by an accidental slip no provision for future interest was made either in the judgment or decree. Under such circumstances the court which passed the decree has jurisdiction under S.152 C.P.C. to correct the mistake. In support of this argument the counsel relied on a decision of this court in Mytheen Kunju Abdul v. State Bank of Travancore (1969 KLT 549). The counsel made specific reference to the following observations in the judgment: "In the present case, the plaintiff asked for interest, past and future in the plaint. The defendant, in his written statement, did not controvert the right to future interest. The decree, in effect, was in terms of the claim. Naturally, the obvious conclusion is that the judge intended to award interest past and future, but accidentally omitted to include future interest in the judgment. The defendant, in his written statement, did not controvert the right to future interest. The decree, in effect, was in terms of the claim. Naturally, the obvious conclusion is that the judge intended to award interest past and future, but accidentally omitted to include future interest in the judgment. If the error is self-evident and obviously strikes one as a slip, it certainty comes within the scope of S.152 C.P.C. I am clear that in this case, without straining the language overmuch, the order passed by the Court can be justified." The above extract containing the observations, no doubt supports the argument of the learned counsel. But this decision in my view shall confine to the facts of that case because the said observations were made without reference to or in other words, without taking into account the scheme of 0.34 R.11 C.P.C. It is apparent that this Rule provides that the court may order payment of future interest upto the date of realisation on the aggregate of the principal sum specified in clause (a) of R.11 as calculated in accordance with sub-clause (1) of clause (a) namely at the rate payable on the principal or, where no such rate is fixed, at such rate as the court thinks reasonable. To put it differently, the language employed in the Rule gives the Court certain amount of discretion so far as interest pendente lite and subsequent/future interest is concerned. (See the decision of the Supreme Court in Soli Pestonji Majoo v. Gangadhar Khemka, AIR 1969 S.C. 600). That means the court is not bound to award such interest at the contract rate, but may award such interest at any rate, it considers reasonable; reason being that after the date fixed in the decree for payment the relationship between the parties passes from the domain of contract into that of judgment. 6. From the discussion above the only inference possible is that the non-making of a provision in the judgment/ decree passed in suits relating to mortgages of immovable property is deliberate and therefore that cannot be considered as clerical or arithmetical mistakes or error arising from any accidental slip or omission. It must therefore be held that the court has refused to grant future interest. The application of the petitioner under S.152 has therefore, rightly been rejected by the court below. 7. It must therefore be held that the court has refused to grant future interest. The application of the petitioner under S.152 has therefore, rightly been rejected by the court below. 7. Coming to the second point regarding the determination of the amount of debt under sub-section 8 of S.7 of Act 11 of 1970: A reading of the Section makes it clear that the court is bound to determine the quantum which the debtor is bound to pay. The trial court as is seen from the judgment, has left this question open for being considered at the time of execution. In the light of the said observation the executing court ought to have determined the quantum taking into account sub-section 8 of S.7 of Act 11 of 1970 and made the respondents liable therefor. The order refusing to consider the issue therefore is set aside. 8. The executing court accordingly is directed to consider and dispose of the execution petition keeping in view the observations contained in this order and in accordance with law. The C.R.P. is disposed of as above. No costs.