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2009 DIGILAW 680 (JK)

Ex. Engineer v. Ab. Rashid Budoo

2009-12-24

SUNIL HALI

body2009
1. Executive Engineer, Electric Maintenance Division IV, Srinagar has filed this revision petition against the order of learned Second Additional District Judge Srinagar dated 16.07.2008 passed in execution proceedings, whereby the amount deposited by the petitioner-judgment debtor has been adjusted towards the interest part of the decree and petitioner directed to pay the principal amount. 2. Brief facts of the case may be enumerated thus:- Respondent no.1 filed a suit for recovery of Rs. 1,36,900/- from the present petitioner on the ground that defendants have disconnected the electric supply to his Band-Saw Mill without any reason thereby resulting in closure of the Mill and loss to the respondent no.1. The suit was not contested by the present petitioner and resultantly an ex-parte decree was passed by learned Second Additional District Judge Srinagar on 12.03.1997, decreeing the suit of the plaintiff-respondent no.1. The plaintiff was also allowed interest on the amount of Rs. 1,36,900/- at the rate of 12% P.A with effect from institution of the suit till the amount was paid to him. As per the decree, the judgment-debtors were required to pay an amount of Rs. 2,86,946.00, which included interest and costs of the suit also upto 30.06.1997. 3. An appeal seems to have been filed against the decree and judgment dated 12.03.1997 by the present petitioner before this Court, wherein the petitioner was directed to deposit the decreetal amount along with interest before this Court on 01.04.1998. The petitioner, however, deposited an amount of Rs. 1,36,900/- before the High Court on 27.05.1998. The appeal was subsequently dismissed in default on 01.12.2005. 4. After execution petition was filed by the respondent no.1 before the Court below, the petitioner appeared and stated that, as it has already deposited the principal amount on 27.05.1998, and was not required to pay interest thereafter and the respondent-decree holder was entitled to interest from the date of institution of the suit till the principal amount was deposited before the High Court. This contention has been rejected by the court below and after hearing the parties, the trial Court has held that amount of Rs. 1,36,900/- deposited by the petitioner on 27.05.1998 before the High Court and subsequent deposit of an amount of Rs. 1,52,046/- on 3.10.2007 before the executing court, has to be adjusted towards the interest part and petitioner is required to liquidate the rest of the decreetal amount. 5. 1,36,900/- deposited by the petitioner on 27.05.1998 before the High Court and subsequent deposit of an amount of Rs. 1,52,046/- on 3.10.2007 before the executing court, has to be adjusted towards the interest part and petitioner is required to liquidate the rest of the decreetal amount. 5. I have considered the submissions of learned counsel for the parties. 6. The short question involved in this revision, which requires consideration, is as to whether the amount of Rs. 1,36,900/- deposited by the petitioner on 27.05.1998, could be adjusted towards the principal decreetal amount and whether the petitioner is required to pay interest thereafter on the withheld amount. 7. Decree for an amount of Rs. 2,86,946.00 stood passed by the trial Court of which the principal amount was Rs. 1,36,900/- and remaining amount was interest which had accrued from the date the amount was withheld. 8. It is contended that the principal amount of Rs. 1,36,900/- was deposited on 27.05.1998. The interest part was not, however, deposited by the petitioner. It is also contended that a further amount of Rs. 1,52,046/- was deposited on 3.10.2007. 9. The question for determination is as to whether the interest can be claimed on the aggregate sum so adjudged at the time of passing of the decree. To say it candidly that after the decree has been passed for an amount, which includes principal and interest part also, no interest can be claimed after the principal amount is liquidated. To understand this, the direction of the Court passing the decree had to be taken note of. The direction is quoted as under:- "An ex-parte decree for an amount of Rs. 1,36,900/- with costs is passed in favour of the plaintiff and against the defendants coupled interest at the rate of 12% P.A from the date of institution of suit i.e. 09.12.1988 till the final realization of the amount." 10. The import of the decree clearly reveals that an ex-parte decree for an amount of Rs. 1,36,900/- had been passed against the petitioner along with interest at the rate of 12% P.A from the date of institution of the suit i.e. 09.12.1988 till final realization of the amount. The Court had assessed the amount which had accrued at the time of decree as Rs. 2,86,946/-. 1,36,900/- had been passed against the petitioner along with interest at the rate of 12% P.A from the date of institution of the suit i.e. 09.12.1988 till final realization of the amount. The Court had assessed the amount which had accrued at the time of decree as Rs. 2,86,946/-. Once the principal amount was paid in the year 1998, no interest could be charged in respect of the remaining amount which was left un-paid by the judgment debtors. I say so because the import of the decree clearly envisages that the interest had to be charged for with-holding the principal amount. Once the principal amount had been paid, no further interest could be charged unless the decree specifically says so. This is also the import of Section 34 of the Code of Civil Procedure, which says that further interest can be ordered by the Court on the aggregate sum so adjudged from the date of decree to the date of payment. No such direction is visible from the decree passed by the trial Court. Therefore, the petitioner was required to pay the balance amount, which it claims to have deposited on 3.10.2007. 11. I, therefore, allow this revision petition and set aside the order impugned. However, if any interest had accrued from the date of decree i.e. 12.03.1997 till the principal amount was deposited on 27.05.1998, the decree holder can move the executing court for recovery of that amount.