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Andhra High Court · body

2009 DIGILAW 373 (AP)

Kuppam Satyanarayana v. Beduru Siva Reddy

2009-06-16

G.ROHINI

body2009
Judgment :- This Civil Revision Petition is directed against the order dated 25.10.2008 in E.P.No.94 of 2006 in O.S.No.376 of 2003 on the file of the Court of the Junior Civil Judge, Tadpatri. The Revision petitioner is the decree-holder who obtained a money decree against the respondent herein for a sum of Rs.13,621/- with subsequent interest @ 12% p.a on the principal amount of Rs.12,000/- from the date of suit till the date of decree and further interest @ 6% p.a. on the principal amount from the date of decree till the date of realization. On the basis of the said decree, the decree-holder/Revision petitioner filed E.P.No.94 of 2006 on 17.08.2006 by arrest and detention of the judgment-debtor in civil prison for recovery of a sum of Rs.20,068/- towards the decretal amount together with interest. Pursuant thereto, though a warrant was issued against the judgment-debtor, the same could not be executed. Subsequently fresh warrant was issued on 10.08.2008. The decree-holder/Revision petitioner paid process for execution of the warrant and in the warrant form the interest due till that date was also added while specifying the amount due under the decree. However, the Court below did not allow the decree- holder/Revision petitioner to claim the interest till date holding that the decree-holder had to file a fresh E.P. for recovery of the subsequent interest. Accordingly by order dated 25.10.2008 the Court below directed to issue arrest warrant only for the amount due as on the date of filing the Execution Petition. Aggrieved by the said order, the present Civil Revision Petition is filed by the decree-holder contending that since the interest is granted in the decree till the date of realization the executing court cannot go beyond the decree and compel the decree-holder to file a fresh execution petition for the interest accrued subsequent to the filing of the E.P. I have heard the learned counsel for the petitioner. Despite notice the respondent did not choose to appear. Order XXI Rule 11 (2) (g) of C.P.C. provides that every application for execution of a decree shall be in writing and shall contain the amount with interest if any, due upon the decree. Despite notice the respondent did not choose to appear. Order XXI Rule 11 (2) (g) of C.P.C. provides that every application for execution of a decree shall be in writing and shall contain the amount with interest if any, due upon the decree. Order XXI Rule 38 provides that every warrant for the arrest of the judgment-debtor shall direct the officer entrusted with its execution to bring him before the Court unless the amount which he has been ordered to pay together with interest thereon and the costs, if any, to which he is liable is paid. Thus it is clear that the judgment-debtor is liable to pay the amount which he has been ordered to pay together with the interest thereon and in the event of default the judgment-debtor shall be produced before the Court. When the judgment-debtor is made liable to pay the decretal amount together with the interest awarded upto the date of realization, the amount referred to in the execution petition or the warrant cannot restrict the liability of the judgment-debtor as per the decree. As a matter of fact, the proviso to Order XXI Rule 17 (1A) of C.P.C. empowers the Court to decide provisionally the amount with interest due upon the decree notwithstanding the inaccuracy in the application made by the decree-holder and make an order for the execution of the decree for the amount so provisionally decided. It was further made clear that such provisional decision is without prejudice to the right of the parties to have the amount finally decided in the course of the proceedings. In the circumstances, it is always open to the Court to add the interest accrued till the date of issuance of the fresh warrant. Even assuming that the judgment-debtor has any objection with regard to the amount so mentioned, the judgment-debtor has a right to raise his objection in the course of the proceedings as provided in the proviso to Order XXI Rule 17 (1A) and the Court is bound to decide such objection. It is also relevant to note that it is not possible for the decree-holder on the date of application for execution to calculate the dues upto the date of realization since the same is not within his knowledge. It is also relevant to note that it is not possible for the decree-holder on the date of application for execution to calculate the dues upto the date of realization since the same is not within his knowledge. A reading of Rule 11 of Order XXI of C.P.C. makes it clear that the application shall be for execution of the decree as a whole i.e., for the total amount due from the judgment-debtor under the decree till the date of realization. There is no other provision under the Code of Civil Procedure or any other Statute which prohibits the decree-holder from recovering the sum due under a decree till the date of realization. For the aforesaid reasons, the Court below was not justified in compelling the decree-holder/Revision petitioner to file a fresh execution petition for the interest accrued after filing the execution petition. Accordingly, the order under Revision is hereby set aside and the Civil Revision Petition is allowed with a direction to the Court below to issue a fresh warrant calculating the interest accrued upto the date of warrant and also making it clear that the judgment-debtor would be liable to pay the amount till realization. No costs.