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2001 DIGILAW 1573 (MAD)

R. Lingaraj v. Dr. Arumugha Pandian

2001-12-04

PRABHA SRIDEVAN

body2001
Judgment :- The Order of the Court was as follows : The revision petitioner is the judgment debtor. He is aggrieved by the order passed by the executing Court in the E. P. filed by the respondent. 2. The suit filed by the respondent on a pro-note dated 3-2-2000 for a sum of Rs.10, 000/- was decreed on 19-9-1997. The salary of the judgment debtor was attached and amounts were credited to the suit account. The respondent, after adjusting the interest, costs and the principal, claimed that the amounts due as on 15-9-1997 was Rs.7, 229.91. This was ordered by the Court below. 3. Learned counsel for the petitioner would submit that on 15-10-1999, the decree holder received a sum of Rs. 10, 680/- by way of cheque from the petitioner. On that date, as per the memo of calculation given by the respondent, only a sum of Rs. 7, 229/- was due. So, this would clearly show that the petitioner had totally discharged the amount due under the decree debt. He also submitted that the respondent is not entitled to interest once the amounts have been deposited. His grievance was that the Court below had, without questioning, accepted the accounts given by the respondent. 4. Mr. E. Srinivasulu, learned counsel for the decree holder/respondent on the other hand would submit that all the amounts received by the respondent from the petitioner including the salary that was attached were given credit to and it was only thereafter that the E.P. was filed. He also furnished the memo of calculation. The learned counsel for the respondent also submitted that the decree holder is entitled to credit the amount paid or remitted into Court first towards interest and costs and only thereafter towards principal, unless otherwise indicated. According to the learned counsel, the judgment debtor cannot take shelter under Order 21, Rule 4, C.P.C. unless notice had been served to the decree holder. He relied on the following decisions : (i) 1988 (2) LW 441 (Shankar Raj, K. R. v. State Bank of India) in which it was held that if money is paid under the decree in accordance with Rule 1 of Order 21, C.P.C. by deposit into Court that shall be recognised by the Court. In that case, the entire balance due under the decree was deposited into Court after giving notice to the decree holder's advocate. In that case, the entire balance due under the decree was deposited into Court after giving notice to the decree holder's advocate. This was relied on by the learned counsel to show that unless notice is given, payment cannot be recorded. (ii) 1992 (2) Current Civil Cases, 688 (Hindustan Organic Chemicals Ltd. v. Mathunni Mathai) in which the learned Judge of the Kerala High Court held that when the judgment debtor had not specified as to the manner in which the amount deposited has to be appropriated, it is open to the decree holder to adjust the payment first towards interest. (iii) 1996 (2) Current Civil Cases 117 : 1996 AIHC 2121) (Bank of India v. M/s. Delhi Faridabad Textiles (P) Ltd. in which the learned Judge of the Punjab and Haryana High Court held that when no notice or intimation was given by the judgment debtor to the decree holder for appropriation or for indication of the manner of appropriation, the decree holder is entitled to appropriate the deposit payment towards interest due. (iv) 1996 (2) Current Civil Cases 325 (State of Gujarat v. Gangaji Ramji (M/s.)), in which the Gujarat High Court held that when amounts were deposited in Court, as a condition for obtaining stay, it would not amount to payment or deposit towards satisfaction of decree since deposit can be held to be so made only if the prescribed procedure under Order 21, Rule 1 has been followed. (v) 1992 (1) Current Civil Cases 609 (Union of India v. B. Bhogilal), in which it was held that if part of the decretal amount is deposited for obtaining interim stay of the execution of decree, the payment cannot be said to be one made under Order 21, Rule 1, C.P.C. so as to disentitle the plaintiff to interest as ordered by the trial Court. (vi) 1996 (1) Current Civil Cases 397 (Sukhdev Pershad through L.R. v. B. Kishanlal), where the Andhra Pradesh High Court held that any payment made by the judgment debtor towards decretal dues must first be appropriated towards interest and only then towards principal. (vii) 1996 (3) Current Civil Cases 240 (P. N. Bank v. M/s. Vishwanathan Ginners Pvt. Co. (vi) 1996 (1) Current Civil Cases 397 (Sukhdev Pershad through L.R. v. B. Kishanlal), where the Andhra Pradesh High Court held that any payment made by the judgment debtor towards decretal dues must first be appropriated towards interest and only then towards principal. (vii) 1996 (3) Current Civil Cases 240 (P. N. Bank v. M/s. Vishwanathan Ginners Pvt. Co. Ltd.), where when a third party deposited an amount for purchase of the hypothecated property, it was held by this Court that the amount deposited by a third party to the decree cannot be adjusted towards the principal without concurrence of the decree holder. (viii) 1999 (3) Mad LW 194 : (M/s. Industrial Credit and Development Syndicate v. Smt. Smithaben H. Patel) where the Supreme Court held that payment by judgment debtor shall be adjusted according to the terms of the decree as per general rule and in absence of such directions, the payments will be adjusted first towards interests and costs and thereafter towards payment of the principal. (ix) 1978 AIR(Calcutta) 419 (L.I.C. of India v. Gadadhar), where the Calcutta High Court held that when there were no instructions from the judgment debtor that money is to be adjusted towards principal, the decree holder was entitled to adjust the payment towards interest first and then towards principal. For this was relied on. (x) 1978 AIR(P&H) 241 (Punjab State v. Ishar Singh), where it was held that the question whether interest on decretal amount ceases on deposit of amount in Court can be answered in favour of the judgment debtor only if the decree holder had notice of such payment into Court. For all these reasons, the learned counsel would submit that the order of the Court below did not warrant any interference. 5. Order 21, Rule 1, C.P.C. deals with modes of paying money under decree. Payment can be made either by deposit into Court or sent to the Court by postal money order or through bank or out of Court to the decree holder where payment is evidenced in writing or otherwise as the Court directs. 5. Order 21, Rule 1, C.P.C. deals with modes of paying money under decree. Payment can be made either by deposit into Court or sent to the Court by postal money order or through bank or out of Court to the decree holder where payment is evidenced in writing or otherwise as the Court directs. If payment is made under Clause (a) or Clause (b) of the Sub Rule (1), the judgment debtor is bound to give notice to the decree holder either through Court or directly and when any amount is paid under Clause (a) or (c) of sub Rule 1, interest shall cease to run from the date of service of notice or if amount is paid under clause (b), interest shall cease to run from the date of such payment. The general rule as laid down in the Supreme Court judgments referred to by the learned counsel for the respondent is that it should be adjusted first strictly in accordance with the directions contained in the decree and in the absence of such direction, adjustments are made first in payment of interest and costs and thereafer in payment of the principal amount. This principle was subject one exception and that is, the parties may agree to the adjustment of payments in any other manner despite the decree. The petitioner has not stated that he has indicated the manner in which the money remitted has to be adjusted. The decree reads thus : (Vernacular matter omitted.) The Court therefore has decreed payment of the decretal amount being Rs. 13, 090/- and payment of interests of Rs. 10, 000/- from 9-3-1992 at 24% per month till the decree debt is paid. On 15-10-1999, when a cheque payment of Rs. 10, 680/- was made, the total amount due as interest as on that date was only Rs. 2, 390/- This was given credit to. Thereafter, the costs of Rs. 2, 429.25 was also given credit to. A balance of Rs.5, 861/- still remained and this was adjusted towards the decretal amount of Rs. 13, 090/-. It appears from the memo of calculation filed by the respondent in this Court that even after that, the respondent has continued to calculate interest on Rs. 10, 000/- which he is not permitted to do since the portion of the amount has been adjusted towards principal on that date. 13, 090/-. It appears from the memo of calculation filed by the respondent in this Court that even after that, the respondent has continued to calculate interest on Rs. 10, 000/- which he is not permitted to do since the portion of the amount has been adjusted towards principal on that date. The typed set of papers also show that even after the filing of the E.P., the salary of the judgment debtor was attached and the last payment by way of attachment as seen from the counter filed by the petitioner herein is a sum of Rs.1, 605/- on 1-3-2001. The Court below erred in accepting the memo of calculation filed by the resondent even after the amounts paid by the respondent had fully satisfied the interest due as on that date and appropriation was made towards principal. When this is apparent even from the memo of calculation filed by the respondent herein, the executing Court ought to have taken into account that interest would cease at least to the extent of the amount paid towards principal. 6. In these circumstances, the impugned order is set aside and the matter is sent back to the executing Court. The parties are directed to furnish the statement of payments made as on date and the Executing Court shall thereupon calculated the amount due taking into account, that interest will cease to run on such portion of the decretal amount that has been paid and thereafter pass orders. This will be in accordance with the decision of the Courts and Order 21, Rule4, C.P.C. CRP is therefore allowed and the matter is remanded to the executing Court. No costs, CMPs 7787 and 14635 of 2001 are closed. Revision allowed.