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Madras High Court · body

2011 DIGILAW 4647 (MAD)

J. Maheswari v. Balaraman

2011-11-28

R.SUDHAKAR

body2011
Judgment :- 1. This Civil Revision Petition is filed challenging the Order and decretal order dated 2.5.2010 passed in Unnumbered E.A.SR.No.54968 of 2010 in E.P.No.520 of 2006 in O.S.No.9612 of 1996 on the file of the X Assistant Judge, City Civil Court, Chennai. 2. The brief facts of the case is as follows:- The respondent/defendant borrowed a sum of Rs.1,75,000/- promising to repay the same with interest at the rate of 12% per annum under a promissory note and created an equitable mortgage by deposit of title deeds of certain property in favour of the revision petitioner/plaintiff to secure repayment of the aforesaid amount. Since the loan amount was not repaid, the suit O.S.No.9612 of 1996 was filed for recovery of the principal amount with 12% interest and in default to sell the property for realisation of the amount. A preliminary decree was passed on 28.11.2000 together with interest at the rate of 12% per annum from the date of preliminary decree till date of realisation of the decree amount as follows:- Principle amount =Rs.1,75,000.00 Interest amount =Rs.2,04,225.00 Cost =Rs. 10,294.75 Total amount=Rs.3,89,519.75 The above amount was not deposited. Therefore, final decree proceedings were initiated and a final decree was passed on 2.11.2002. 3. Based on the final decree, on 4.10.2004, Execution Petition No.520 of 2006 was filed claiming interest upto the date of the execution petition. Thereafter, the sale was effected on 9.9.2009 and the proclamation of sale was made on 31.7.2009. The proclamation of sale clearly indicated that the amount due to the revision petitioner/plaintiff/decree holder will be a sum of Rs.5,77,568.25. The property when put on sale fetched a total sum of Rs.19,60,000/-. The sale was confirmed and the auction purchaser deposited the entire amount in course of time. Thereafter the revision petitioner/plaintiff filed an application along with affidavit on 27.11.2009 for payment of Rs.5,77,568.25 based on the amount deposited pursuant to court auction. This application was filed under Rules 163 and 165 of the Civil Rules of Practice. 4. The execution court taking note of the above factual scenario, while accepting the revision petitioners plea for interest from the date of decree till date of realisation came to hold that the revision petitioner claimed only Rs.4,74,282.25 in the Execution Petition and therefore, the revision petitioner is entitled to such amount only. 4. The execution court taking note of the above factual scenario, while accepting the revision petitioners plea for interest from the date of decree till date of realisation came to hold that the revision petitioner claimed only Rs.4,74,282.25 in the Execution Petition and therefore, the revision petitioner is entitled to such amount only. It held that the revision petitioner is not entitled to any amount more than what is claimed in the execution petition. The execution court held that the revision petitioner has not filed any memo of calculation to show as to how she is entitled to a sum of Rs.5,77,568.25. Since the amount claimed under payment out application is more than the amount claimed in the execution petition, the payment out petition was rejected. Challenging the said order, the plaintiff filed the revision petition. 5. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. 6. The preliminary decree clearly specified the amount due under the preliminary decree at Rs.3,89,519.75 with interest at the rate of 12% per annum from the date of preliminary decree till date of realisation. The Execution Petition No.520 of 2006 was filed long before the property was brought to sale and the amount demanded under the Execution Petition is the principal amount adjudged by the court together with interest is as on the date of filing the Execution Petition. The sale in this case took place on 9.9.2009 (i.e.) after more than five years and the proclamation of sale itself is dated 31.7.2009. It is only after the sale is concluded that the application for payment out could be made. 7. In the light of the above, learned counsel for the revision petitioner pleaded that the revision petitioner is entitled to claim the amount of Rs.5,77,568.25 as on date of sale. He relied upon Order 34 Rule 11 CPC to substantiate his plea for payment out with subsequent interest upto the date of realisation on the principal sum as per the preliminary decree. Order 34 Rule 11 CPC reads as follows:- “11. He relied upon Order 34 Rule 11 CPC to substantiate his plea for payment out with subsequent interest upto the date of realisation on the principal sum as per the preliminary decree. Order 34 Rule 11 CPC reads as follows:- “11. Payment of interest:- In any decree passed in a suit for foreclosure, sale or redemption, where interest is legally recoverable, the Court may order payment of interest to the mortgage as follows, namely:- (a) interest up to the date on or before which payment of the amount found or declared due is under the preliminary decree to be made by the mortgagor or other person redeeming the mortgage- (i) on the principal amount found or declared due on the mortgage, - at the rate payable on the principal, or where no such rate is fixed, at such rate as the Court deems reasonable, (ii) omitted (iii) on the amount adjudged due to the mortgagee for costs, charges and expenses properly incurred by the mortgagee in respect of the mortgage-security up to the date of the preliminary decree and added to the mortgage-money, - at the rate agreed between the parties, or failing such rate, at such rate not exceeding six per cent per annum as the Court deems reasonable; and (b) subsequent interest up to the date of realisation or actual payment on the aggregate of the principal sums specified in clause (a) as calculated in accordance with the clause at such rate as the Court deems reasonable.” Clause (b) as above provides for subsequent interest upto the date of realisation which is the sale date. 8. The execution court in this case has clearly held that the revision petitioner/decree holder is entitled to interest till date of realisation and that is in consonance with Order 34 Rule 11(b) CPC. The interest payable will be upto the date on realisation as per the above provision. In view of the specific provision of law, the execution court is not correct in declining the grant of the interest amount due on the preliminary decree amount till the date of realisation. The revision petitioner cannot be found fault stating that she claimed lesser amount on the date of filing the execution petition. In fact, in the execution petition, the amount, that is due on the date of filing the execution petition alone can be mentioned. The revision petitioner cannot be found fault stating that she claimed lesser amount on the date of filing the execution petition. In fact, in the execution petition, the amount, that is due on the date of filing the execution petition alone can be mentioned. The date of sale will be relevant for the purpose of determining the exact amount payable, that is to say with subsequent interest upto the date of realisation. The payment of subsequent interest upto the date of realisation on the principal sum adjudged is provided under clause (b) of Rule 11, Order 34 CPC. The Court below has lost sight of the said provision and has erroneously rejected the application. 9. In view of the above, the order of the Court below is set aside and the revision petitioner is entitled to seek payment out in terms of the Order 34 Rule 11(b) CPC. The revision petitioner has filed the payment out application in terms of the above provision. Execution Court is, therefore, directed to disburse the amount as per the application filed by the revision petitioner/decree holder after verification of records and calculation. The balance amount shall be disbursed to the defendant/judgment debtor after following the procedure prescribed. The Civil Revision petition is allowed as above. No costs.