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2000 DIGILAW 190 (HP)

MELA RAM v. STATE BANK OF INDIA

2000-07-21

C.K.THAKKER

body2000
JUDGMENT C.K. Thakker, C.J.—This revision application is filed against an order passed by District Judge, Kinnaur, Civil Division at Rampur Bushahr, on April 25, 2000, in Objection Petition No. 4 of 2000. 2. Necessary facts leading to the present litigation may now be stated: State Bank of India, respondent herein, filed a suit on August 11, 1994 against the petitioner, who was defendant No. 1, to whom loan was advanced as also against guarantors (proforma respondent Nos. 2 and 3 herein) for the recovery of Rs. 2,92,166, inclusive of interest. The case of the Bank was that the petitioner defendant No. 1 applied for a loan of Rs. 2,84,250 on June 17, 1989. 3. After completing usual formalities, the loan was given to him. It was to be repaid in accordance with the agreement between the parties. There was, however, default on the part of defendant No. 1 and the bank was constrained to institute a suit for the recovery of the loan amount along with interest. It appears that in the suit, defendant showed his willingness to pay the amount and made a statement to that effect before the Court on February 19, 1998. The learned District Judge has quoted the statement at page 6 of the impugned order. The statement read as under: "Stated that the claim of the plaintiff bank and the suit as filed be decreed with costs and the future interest agreed to be paid in the agreement for loan executed by me and the guarantors. Decretal amount be ordered to be made payable through instalments. The first instalment of Rupees 1 lac shall be paid on or before 15.9.1988 and the remainder sum shall be paid through annual instalments payable on or before 15th September every year from the year 1999. In the event of default in payment of first or either of the subsequent instalment, the decretal amount or the remainder sum shall become recoverable at once." 4. On the basis of the above statement, the learned District Judge decreed the suit of the plaintiff bank. The Executing Court in paragraph 10 at page 6, has quoted the relevant part which reads thus: "In view of statement, dated 19.2.1998, of Sh. Mela Ram, defendant No. 1, that of Sh. On the basis of the above statement, the learned District Judge decreed the suit of the plaintiff bank. The Executing Court in paragraph 10 at page 6, has quoted the relevant part which reads thus: "In view of statement, dated 19.2.1998, of Sh. Mela Ram, defendant No. 1, that of Sh. Shankar Dass Negi, dated today, and that of the statement of learned Counsel for defendant No. 3, dated 19.2.1998, as well as statement of the learned Counsel for the plaintiff, dated today, the suit of the plaintiff is hereby decreed with costs and future interest, agreed to be paid as per deed of agreement executed by the defendant while taking loan as also by the guarantors. Having regard to the nature and circumstances of the case, I find it just and expedient to order that the decretal amount shall be paid by the defendants through instalments. The first instalment of rupees 1 lac shall be paid on or before 15.9.1998 and remainder sum shall be paid through equated annual instalments, payable on or before 15th September every year from the year 1999. It is further ordered that in the event of default in payment of the first or either of the subsequent instalment by the stipulated date, the decretal or the remainder decretal amount shall become recoverable at once. Let decree sheet be prepared accordingly and file be consigned to records". 5. It appears that the decree-holder (State Bank of India) filed Execution Application claiming amount of Rs. 5,66,554 (Rs. 2,92,166 as principal amount + Rs. 2,74,588 future interest from July 14, 1994, to October 19, 1998, 15% p.a. with quarterly rest). Over and above the said amount, the decree-holder also claimed an amount of Rs. 15,573.40 towards costs. 6. A notice was issued to the judgment debtor (petitioner herein) on the Execution Application filed by the decree-holder. The judgment debtor filed objection petition on March 18, 2000 inter alia contending that the decree passed by the Court stipulated "only future interest" i.e. from April 21, 1998, i.e. from the day on which decree was passed. The decree holder was not entitled to interest prior to that date and the decree holder cannot make demand of anything more. It was also contended that the executing court cannot go behind the decree and the objection petition was, therefore, deserved to be allowed. 7. The decree holder was not entitled to interest prior to that date and the decree holder cannot make demand of anything more. It was also contended that the executing court cannot go behind the decree and the objection petition was, therefore, deserved to be allowed. 7. The executing Court after hearing the parties, overruled the objections raised by the judgment debtor and held that the objection petition was ill-founded and the judgment debtor was also liable to pay interest for the period between August 11, 1994 and April 21, 1998. It is this order which is challenged by the judgment debtor in the present revision petition. 8. On June 23, 2000, notice was issued to the decree-holder/ plaintiff Bank as to why the revision petition should not be admitted and allowed. Ad interim relief was also granted. Today the matter has been heard finally. 9. I have heard Mr. B.K. Sood, learned Counsel for the petitioner, and Mr. Ashwani K. Sharma, learned Counsel for the respondent. 10. Mr. Sood contended that the order passed by the executing court cannot be said to be legal or lawful and is liable to be set aside. He raised various contentions: 11. An executing Court has no jurisdiction to go behind the decree passed by a competent court. Under the garb of interpretation of decree, it cannot modify or rewrite the decree by granting additional relief which was not granted by the Court in the suit. 12. The decree in question cannot be said to be vague or ambiguous. When the competent court decreed the suit stating that the plaintiff Bank would be entitled to "future" interest, the Bank was entitled to interest from the date of decree, i.e. from April 21, 1998, and not prior to that period. 13. The executing court has exceeded its power and jurisdiction by substituting its own decree for the decree passed by the competent court and awarded additional interest which is not in consonance with law. 14. The executing Court has totally ignored the provisions of sub-section (2) of Section 34 of the Code which lays down that when the decree was silent as to payment of interest pendente lite, the court "shall be deemed to have refused such interest". 15. 14. The executing Court has totally ignored the provisions of sub-section (2) of Section 34 of the Code which lays down that when the decree was silent as to payment of interest pendente lite, the court "shall be deemed to have refused such interest". 15. The decree passed by the Court was final and binding on the parties inasmuch as no appeal was filed by the plaintiff Bank against the said decree. 16. Even, according to the plaintiff, the court while passing the decree had granted only "future" interest and interest pendente lite was not awarded. The Bank, therefore, made an application under Section 152 read with Section 151 of the Code for correction of mistake in decree by adding interest from the date of suit till the date of decree. 17. On all these grounds, the learned Counsel submitted that the order passed by the executing court is liable to be quashed and set aside by directing that the decree holder would be entitled to "future interest" from April 21, 1998 and not for the period between August 11, 1994 and April 21, 1998. 18. Mr. Sharma, learned Counsel for the respondent decree holder, on the other hand, supported the order passed by the executing Court. He submitted that on the basis of the statement made by defendant No. 1, compromise decree was passed. In the statement it was admitted by defendant No. 1 that he would pay "future interest agreed to be paid in the agreement for loan executed", which would include interest on the loan from the date of receipt of loan by him Obviously, in these circumstances, he could not be absolved from payment of interest for the period between August 11, 1994 and April 21, 1998. Considering the statement of defendant No. 1, the court decreed the plaintiffs suit with costs -and future interest. According to the learned Counsel, the benefit which was granted to the judgment debtor was of annual instalments. The counsel urged that the term in the decree must be interpreted in the light of the statement made by defendant No. 1 before the Court and prayer made by the plaintiff Bank in the suit. According to the learned Counsel, the benefit which was granted to the judgment debtor was of annual instalments. The counsel urged that the term in the decree must be interpreted in the light of the statement made by defendant No. 1 before the Court and prayer made by the plaintiff Bank in the suit. If the direction in the decree is appreciated in its proper perspective keeping in mind the prayer in the plaint, it cannot be said that the executing court has committed any error of law or of jurisdiction which deserves interference. It was also submitted that the Court had no jurisdiction to refuse interest pendenie lite. The executing court was, therefore, fully justified in passing the impugned order and this Court may not interfere with it. lie, therefore, submitted that the petition deserves to be dismissed. 19. Having considered the rival contentions of the parties, in my opinion, the petition deserves to be allowed. So far as the directions in the decree passed by the trial court are concerned, in my opinion, there is no ambiguity whatsoever. The relevant sentence in the decree reads as under: "......It is ordered that the suit of the plaintiff is hereby decreed with costs and future interest, agreed to be paid as per deed of agreement executed by the defendant while taking loan as also by the guarantors......." 20. Thus, the court, after considering the statement of defendant No. 1, passed a decree in favour of the Bank and against the present petitioner by granting future interest to plaintiff Bank. The expression future interest, in my view, is abundantly clear and it cannot be said that when that expression was used by the Court, it was to include interest pendenie lite between August 11, 1994 and April 21, 1998. 21. The matter, however, does not end there. The statement made by defendant No. 1 (petitioner herein) was also clear that he was willing to pay "future interest". Thus, by admitting his liability, he wanted benefit in payment of interest pendente lite. The said Statement was accepted by the court and in the compromise decree, that fact was reflected. It was, no doubt, submitted by the learned Counsel for the decree holder that by making the statement and getting compromise decree passed, the judgment debtor got benefit of instalments which were granted by the court. The said Statement was accepted by the court and in the compromise decree, that fact was reflected. It was, no doubt, submitted by the learned Counsel for the decree holder that by making the statement and getting compromise decree passed, the judgment debtor got benefit of instalments which were granted by the court. But when the language of the decree was clear, the executing Court was not justified in awarding interest pendente lite to the decree holder. 22. In this connection, it may be profitable to refer few decisions of the Supreme Court. 23. In Topanmalv. Kundornal, AIR 1960 SC 388, the Supreme Court stated: "It is a well settled principle that a court executing a decree cannot go behind the decree; it must take the decree as it stands, for the decree is binding and conclusive between the parties to the suit". A similar view has been taken by the Apex Court in other cases (vide Ramaswamiv. Kailasa, AIR 1951 SC 189; Vasudev Dhanjibhai Modi v. Rajabhai, AIR 1970 SC 1475; Ramesh Singh v. State of Haryana, AIR 1996 SC 3066; Rarneshwar Dasv. State of UP., AIR 1997 (SC) 410. 24. In Bhavan Vija and others v. Solanki Hanuji Khodaji Mansang and another, AIR 1972 SC 1371, it was held by their Lordships of the Supreme Court that it is settled principle of law that an executing court cannot go behind the decree under execution. That, however; does not mean that it has no power to find out the true effect of the decree. For construing a decree it can, and in appropriate cases it ought, to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree, the court often has to ascertain the circumstances under which these words came to be used. That is the plain duty of the executing court and it will have to discharge the said duty. 25. The question, therefore, is whether the language used in the decree is clear or ambiguous. If the words used in the decree are clear and unambiguous, the executing court has no power and any change made in the words used in the decree would amount to rewriting the decree or substituting the decree by the executing court for the decree passed by a competent court in a suit. If the words used in the decree are clear and unambiguous, the executing court has no power and any change made in the words used in the decree would amount to rewriting the decree or substituting the decree by the executing court for the decree passed by a competent court in a suit. If, on the other hand, the words in the decree are vague or the terms are ambiguous, it is power and duty of the executing court to give effect to the intention of the parties which can be gathered from the pleadings and other attenuating circumstances. 26. In the instant case, however, in my view the words used in the decree were neither vague nor ambiguous. On the contrary, the statement of defendant No. 1 was amply clear and he had shown his readiness and willingness to pay the amount with costs and with "future" interest Defendant No. 1 was thus very clear in his statement before a competent court as to what he intended to pay. The Court understood the statement made by defendant No. 1 and passed a consent decree stating therein that the plaintiff Bank would be entitled to amount, costs and "future" interest, In these circumstances, the executing court had no power or authority under the guise of interpreting the decree to award interest pendents lite which was not granted by a competent court. 27. The matter can be looked at also from another angle. Subsection \2) of Section 34 enacts that where a decree is silent with respect to payment of interest 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. If the contention of the learned Counsel for the decree holder is accepted that even if in the decree, it is not stated by a competent court that the plaintiff Bank would be entitled to interest pendente lite, it must be deemed to have granted, the said provision of Section 34 (2) of the Code would become totally nugatory. 28. If the contention of the learned Counsel for the decree holder is accepted that even if in the decree, it is not stated by a competent court that the plaintiff Bank would be entitled to interest pendente lite, it must be deemed to have granted, the said provision of Section 34 (2) of the Code would become totally nugatory. 28. My attention was, no doubt, invited by the learned Counsel, for the decree holder to decisions in West Bengal Financial Corporation and another v. Bertram Scott (I) Ltd. (In Liquidation), AIR 1983 Calcutta 381; Union of India and another v. A. Venkataiah, AIR 1975 Madras 119; Life Insurance Corporation of India v. Tada Tirupathayya, AIR 1963 Andhra Pradesh 353; Central Bank of India, Kutchv. PR. Garments Industries Pvt. Ltd., Surendranagar and others, AIR 1986 Guj. 113 and The United Commercial Bank, Silchar v. Satish Chandra Ghosh and another, AIR 1991 Gauhati 59. In my opinion, none of the cases is relevant to the case on hand as either there was grant of interest at a lower rate by a court inspite of the fact that the transaction in question was of a "commercial nature" or interest was refused and a grievance was made by the plaintiff by filing regular appeal against such an order. The ratio laid down in the above decisions, therefore, cannot assist the decree holder. 29. But there is yet another aspect which is important. It was contended by the learned Counsel for the petitioner that even the plaintiff Bank was convinced that interest pendente lite was not awarded by the Court and, hence, an application was filed by the plaintiff Bank in the executing Court under Section 152 read with Section 151 of the Code on April 3, 2000. In the prayer clause it was stated as under: "It is, therefore, prayed that the application may kindly be allowed and the decree under execution may kindly be amended by adding after future interest, agreed to be paid as per deed of agreement executed by the defendants while taking loan as also by the guarantors from the date of institution of the suit till its realisation for the ends of justice." The counsel stated at the Bar that no order on the said application was passed by the Court but objection petition filed by the judgment debtor (present petitioner) was rejected by the Court. 30. 30. The counsel, in my opinion, rightly contended that when interest pendente lite was not awarded by the trial Court and an application was made praying before the executing court to construe the decree so as to mean that the plaintiff Bank was also entitled to interest pendente lite, such application would not be competent and would not be covered within the ambit and scope of accidental or arithmetical error under Section 152 read with Section 151 of the Code. 31. In this connection reliance was placed by the learned Counsel to a recent decision of the Supreme Court in Dwarkadas v. State of M.P. and another, (1999) 3 SCC 500, wherein the Apex Court observed that under Sections 152 and 151 of the Code mistakes or errors in judgments, orders and decrees can be corrected but such mistake or omission must be accidental, arithmetical or non-intentional It, however, does not cover the merits of the case. Those provisions cannot be invoked to modify, alter or add to the terms of the original judgment, order or decree so as to allow passing of new decree of altering the original judgment, decree or order. In that case also, the trial court in the decree did not grant interest pendente lite despite a prayer made in that regard. When an application under Section 152 of the Code was made by getting the decree corrected by including award of interest pendente lite, it was held that such application would not lie as it was not within the power of the court to alter the decree. The provisions of Section 152 of the Code could not be attracted. 32. In my opinion, the ratio laid down in Dwarkadas applies with all force to the present case. When the trial court granted "future" interest, it would mean that interest pendente lite was not granted by the Court. The case was thus covered by sub-section (2) of Section 34 of the Code. If the decree was not in consonance with law, it was open to the decree holder to take appropriate proceedings against the said decree. Having not done so, and when the said decree had become final, it was not open to the decree holder to get interest pendente lite by filing an application under Section 152 of the Code. If the decree was not in consonance with law, it was open to the decree holder to take appropriate proceedings against the said decree. Having not done so, and when the said decree had become final, it was not open to the decree holder to get interest pendente lite by filing an application under Section 152 of the Code. Likewise, it was not open to the executing Court to award interest on the ground that the expression "future interest" would include interest pendente lite. The executing Court, in my opinion, has committed jurisdictional error which has prejudicially affected the petitioner/judgment debtor and the order passed by the executing court, therefore, deserves to be quashed and set aside. 33. For the foregoing reasons, the revision petition is allowed, the order passed by the executing court is set aside and it is held that the plaintiff/decree holder is entitled to the amount specified in the decree i.e. suit amount, costs and future interest, that is, interest from the date of the decree. The revision application is accordingly allowed in the aforesaid terms. In the facts and circumstances of the case, there shall be no order as to costs. Revision allowed.