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2000 DIGILAW 227 (HP)

DEEPAK SOOD v. STATE OF H. P.

2000-08-25

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J.—This application under Section 151 CPC has been preferred by the Judgment Debtor applicants (hereafter referred to as "Judgment Debtors) with a prayer that the interest which has accured on the decretal amount after the date of deposit of amount may be waived. 2. It has been averred in the application that the judgment debtors had deposited a sum of Rs. 6 lacs together with interest @ 18% per annum with effect from 5.9.1997 to 31.5.1998 amounting to Rs. 79,585 in the Registry towards payment of the decretal amount in Civil Suit No. 55/88 titled Dr. Mukand Lal v. State of H.P. It is further averred that the correct due amount payable to the decree-holder now amounts to Rs. 87,954 and not Rs. 1,11,515.20 paise as claimed, even if the interest amount after 31.5.1998 is liable to be paid by the Judgment Debtors. The judgment debtors have further averred that due to inadvertence, notice of the deposit made towards the decretal amount in the Registry was not served by the Judgment Debtors on the Decree Holders and it also appears that no intimation of the amount having been deposited in this court was given by the Registry to the judgment debtors. The lapse has occurred due to "inadvertence and bona fidely", therefore, the interest after the date of deposit of the amount may be waived. 2. The decree holder non applicants resisted the prayer made in the application and by filing a counter affidavit claimed that under the decree passed against the judgment debtors, in all, a sum of Rs. 8,02,341.20 was payable by the judgment debtors as on 3.5.1999. As against this amount, the judgment debtors deposited a sum of Rs. 6,79,585 and a sum of Rs. 11,771 accrued as interest on the FDR and taking into account these payments, a sum of Rs. 1,10,985.20 plus further interest from 3.5.1999 onwards on the unpaid amount is due from the judgment debtors which they are liable to pay. It has been claimed that decree holder cannot be put to a disadvantage or loss because of the negligence or inaction on the part of the judgment debtors, particularly in view of the their conduct in the litigation throughout. 3. The brief facts leading to the presentation of this application may be summarised as follows: 4. In Civil Suit No. 55/1998 titled Dr. 3. The brief facts leading to the presentation of this application may be summarised as follows: 4. In Civil Suit No. 55/1998 titled Dr. Mukand Lal and others v State of H.P. and another, a decree for Rs. 6 lacs with future interest @ 18% per annum from 5.9.1997 till realisation was passed in favour of the decree holders with costs in the sum of Rs. 11,241.30. Since the judgment debtors failed to satisfy the decree, the decree holders filed an execution petition far execution of the decree on 4.1.1999. The judgment debtors remitted a bank draft for Rs. 6,79,585 vide letter dated 29.6.1998 and another bank draft for Rs. 11,241 vide letter dated 21.5.1999. The amount against these bank drafts was invested in the FDRs and has finally been paid to the decree Holders alongwith interest in the sum of Rs. 11,771 which accrued on the FDRs. It is, however, admitted case that notice was not issued to the Decree holders about the deposit made by the judgment debtors. Therefore, the judgment debtors have claimed that the interest after the date of the deposit of the aforesaid amounts may be waived of. 5. I have heard the learned Counsel for the parties and have also gone through the relevant records. 6. In view of the rival averments and contentions of the parties, two questions which require determination are : (i) whether the decree holders are entitled to recover interest as per the decree on and after the date of deposits made by the judgment debtors as already stated hereinabove; and (ii) whether in the facts and circumstances of the case, the Court has the powers to waive interest as claimed. Question (i) supra 7. Rule 1 of Order XXI of the Code of Civil Procedure deals with the modes of paying money under a decree. The relevant portions of the said Rule which are applicable to the present case read as follows: "Modes of paying money under decree.—(1) All money, payable under a decree shall be paid as follows, namely:— (a) by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank; or (b) ................... (c) ................... (c) ................... (2) Where any payment is made under clause (a) or clause (c) of sub-rule (1), the judgment debtor shall give notice thereof to the decree holder either through the court or directly to him by registered post, acknowledgment due. (3) Where money is paid by postal money order or through a bank under clause (a) or clause (b) of sub-rule (1) the money order or payment through bank, as the case may be, shall accurately state the following particulars, namely: (a) ..................... (b) .................. (c) how the money remitted is to be adjusted, that is to say, whether it is towards the principal, interest or costs; (d) ...................... (e) ...................... (4) On any amount paid under clause (a) or clause (c) of sub-rule (1), interest, if any, shall cease to run from the date of service of the notice referred to in sub-rule (2). (5)......................................." 8. It is apparent from the aforesaid provisions that a decree holder can deposit the decretal amount or a part thereof into the Court whose duty it is to execute the decree by the specified modes. As and when such deposit is made, the judgment debtor shall give notice of the deposit to the decree holder through the court or directly by registered post acknowledgement due. In case the requisite notice as provided under sub-rule (2) supra is given by the judgment debtor to the decree holder, the future interest if awarded, shall cease to run from the date of service of such notice. However, in the event of the judgment debtor failing to serve the requisite notice, the interest shall continue to run till the date the decree holder has the notice of such deposit. The judgment debtor at the time of making the deposit shall inter-alia state the particulars as to how the deposited amount is to be adjusted towards the principal or the interest or the costs. If the requisite particulars are furnished, the deposited amount may be adjusted as per the particulars given as per clause (c) of sub-rule (3) supra but in the absence of such particulars, it will be in the discretion of the decree holder to adjust the amount so paid against the principal/interest/costs, 9. If the requisite particulars are furnished, the deposited amount may be adjusted as per the particulars given as per clause (c) of sub-rule (3) supra but in the absence of such particulars, it will be in the discretion of the decree holder to adjust the amount so paid against the principal/interest/costs, 9. It is admitted case of the judgment debtors that while making the deposits neither they made a prayer to the court to issue a notice regarding deposits of the decretal amount in the Registry nor they issued such notice directly to the judgment debtors as per the provisions of sub-rule (2) supra. The contention for the judgment debtors that registry ought to have informed the decree holders about the deposits is contrary to the express provisions of law as such a duty is not cast on the registry by the statute but the judgment debtor is duty bound to come up with appropriate prayer to the court to issue notice or to directly serve a notice on the decree holders. Therefore, the judgment debtors having failed to comply with the provisions of sub-rule (2) supra the future interest shall have to be calculated till the date(s) the decree holders had the notice about the deposit(s). 10. While remitting the bank drafts, the judgment debtors have not given the requisite particulars as per clause (c) of sub-rule (3) supra, therefore, it is in the discretion of the decree holders as to whether the amount is to be adjusted against the principal or the interest or the costs or against two or more of them, as the case may be. Question (ii) supra 11. There cannot be any dispute that the interest which has been awarded by a decree passed by a court of competent jurisdiction cannot be waived by the Executing Court in exercise of its inherent powers. 12. As a result, there is no merit and substance in this application which is accordingly dismissed. Application dismissed.