Judgment :- 1. Inveighing the order dated 09.04.2010 passed in E.A.SR.No.1770 of 2010 in EP No.153 of 2008 in OS No.114 of 2003 by the learned Subordinate Judge, Vellore, this civil revision petition is focussed. 2. Heard both sides. 3. Compendiously and concisely the relevant facts absolutely necessary and germane for the disposal of this revision would run thus: The respondent filed the suit based on mortgage and obtained the preliminary decree and the final decree relating to the property concerned, and he filed EP also for bringing the mortgaged property for sale. While so, the revision petitioner/judgment debtor also paid certain amounts; thereafter he also presented the application invoking Section 47 of CPC, but the trial Court returned the application with the following endorsement: "The petitioner/J.D. Admitted by the (sic) Decree amount and payment (sic) regularly from 4.8.09 to up to 8.3.2010. Hence how the petition filed u/s 47 is entertained (sic) at this stage to be stated. Time 2 weeks." (extracted as such) Being aggrieved by and dissatisfied with the said order of return, this revision has been filed on various grounds. 4. The learned counsel for the petitioner placing reliance on the grounds of revision, would develop his argument that in utter disregard of Section 34 of CPC, the Court passed the decree awarding 27% interest from the date of suit till realisation and as such Section 47 of CPC could be invoked by the judgment debtor, but the trial Court at the threshold itself returned the application. 5. Per contra, the learned counsel for the respondent/decree holder would set forth and put forth his arguments, which could tersely and briefly be set out thus: The respondent is a registered Benefit Fund having the status of a Company and it is lending money for commercial purposes and it is also paying sufficient interest to the depositors and thereby getting on with their finance business. If it could not recover proper rate of interest from the loanees concerned, then it would not be able to honour its commitment to its depositors. The prayer in the application filed under Section 47 of CPC is totally untenable. If it could not recover proper rate of interest from the loanees concerned, then it would not be able to honour its commitment to its depositors. The prayer in the application filed under Section 47 of CPC is totally untenable. If at all the revision petitioner had felt that he was aggrieved by the judgment passed, he ought to have preferred appeal or filed review, but without doing so he simply filed an application under Section 47 of CPC, which was correctly and appropriately returned at the threshold itself by the Court warranting no interference by this Court in the revision under Article 227 of the Constitution of India. 6. The point for consideration is as to whether the Executing Court was justified in returning the application with the aforesaid endorsement? 7. At the outset itself, I would like to point out that in general Section 47 of CPC no doubt should not be misused by the judgment debtors. It is a benevolent provision so as to safeguard the judgment debtors and their representatives from being harassed by unscrupulous decree holders by making use of the decree and in the meantime the judgment debtors should not misuse it as a weapon to stall the execution proceedings. Perhaps, the lower Court felt as though the said application under Section 47 of CPC was filed so as to stall the execution proceedings and accordingly returned it. It has to be seen as to whether the return endorsement made by the Executing Court is in commensurate with the case as found set out in the application filed under Section 47 of CPC. 8. I would like to extract the prayer in the application under Section 47 of CPC. "To pass an order directing the amending the decree as as far interest alone is concerned fixing 6% per annum or at the most from 6% to 9% per annum." (extracted as such without correcting it) 9. The learned counsel for the decree holder would submit that under Section 47 of CPC the Executing Court cannot be called upon to amend the decree. The learned counsel for the decree holder would submit that under Section 47 of CPC the Executing Court cannot be called upon to amend the decree. I would like to agree with the submission made by the learned counsel for the respondent that it is beyond the jurisdiction of the Executing Court to amend the decree, but if the Executing Court comes across a factor which is capable of nullifying a portion of the decree, then it can certainly refrain from executing that portion on the ground that it is a nullity. 10. Here it has to be seen as to whether there is any prima facie case available on the side of the revision petitioner/judgment debtor to canvass his case before the Executing Court under Section 47 of CPC that the awarding of the subsequent interest by the Court was in violation of Section 34 of CPC. Hence Section 34 of CPC is reproduced hereunder: "34. Interest.- (1) Where and in so far as a decree is for the payment of money, the Court, may, in the decree order, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent per annum as the Court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit." 11. Concerning a non commercial transaction, awarding of interest from the date of suit till the date of decree, is at the discretion of the Court and whatever rate of interest the Court concerned finds reasonable, the same could be awarded and if at all any of the parties concerned is not agreeing to it, the option lies with him is only to file an appeal or a review as the case may be. But on the other hand, in respect of non commercial transaction if the Court passes order awarding interest over and above 6% from the date of decree, in my considered opinion it might amount to a nullity warranting interference by the Executing Court as per Section 47 of CPC. 12. But on the other hand, in respect of non commercial transaction if the Court passes order awarding interest over and above 6% from the date of decree, in my considered opinion it might amount to a nullity warranting interference by the Executing Court as per Section 47 of CPC. 12. As such in this factual scenario, I am of the considered view that the Executing Court can number the application under Section 47 of CPC only for the purpose of considering the limited question as to whether awarding of 6% interest from the date of the decree till realisation on the principal amount would be tenable and for that the Executing Court can also ascertain as to whether the transaction was a commercial or non commercial one. If there is any prima facie case to show that the transaction was relating to a commercial one then in limine Section 47 of CPC application could be dismissed, but on the other hand if the Executing Court comes to the conclusion that the loan transaction was relating to a non commercial one, then in that case the Court may have to hold that such excess interest over and above 6% per annum is irrecoverable. 13. As such with the above observation, the matter is remitted back to the Executing Court to number the application under Section 47 of CPC and dispose of the same after hearing both sides within a period of one month. Both parties shall appear before the Executing Court on 31st August 2010. In the meanwhile I make it clear that no stay could be presumed in respect of the remaining amount is concerned and the judgment debtor is directed to continue to deposit as he was depositing earlier the amounts till pending disposal of this application. 14. Office is directed to return the original application filed under Section 47 of CPC for being represented before the Court on or before 31st August 2010. Accordingly, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.