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2015 DIGILAW 632 (MP)

Chitralekha v. Virendra Kumar Sharma

2015-06-19

ROHIT ARYA

body2015
ORDER 1. By this writ petition under Article 227 of the Constitution of India petitioner has challenged the legality and validity of the order dated 13.3.2009 passed by the executing Court. 2. As per office report, respondent is served with notice, but none has appeared. This petition is pending since 2009. There is an interim order operating since 5.2.2010. Hence, in the fitness of things the writ petition is taken up for consideration. 3. Learned counsel for the petitioner submits that by the impugned order the executing Court turned down the prayer of the petitioner for reducing the interest from 18% to 6% in the decree passed against him. The executing Court has held that it has no jurisdiction to reduce the interest awarded by the trial Court. Accordingly, the executing Court has directed the petitioner/judgment debtor to satisfy the decree. 4. It is submitted that between the same parties three civil suits were decided and in all the three suits the trial Court had awarded 18% interest on the principal amount while decreeing the suit. Petitioner is common judgment debtor in all the three civil suits and objection as regards rate of interest was raised in the executing Court. The same was turned down. Thereafter, writ petition under Article 227 of the Constitution of India was filed vide Writ Petition No.5917/2006 and this Court had set aside the order passed by the executing Court rejecting the prayer for reduction of rate of interest. This Court has held that in the light of provisions as contained in section 34 of CPC and law laid down by various High Courts, the decree passed by the trial Court awarding interest at the rate of 18% upto the date of realization of amount is without jurisdiction and it is further held in para 12 of the order that such a decree is nullity and, therefore, the objection in that behalf can also be taken before the executing Court. Para 12 of the order dated 28.7.2008 passed in writ petition No.5917/2006 reads as under : “12. Hence, in my opinion, the trial Court had no jurisdiction to award interest at the rate of 18% per annum after the judgment and decree upto the realisation of the amount. Para 12 of the order dated 28.7.2008 passed in writ petition No.5917/2006 reads as under : “12. Hence, in my opinion, the trial Court had no jurisdiction to award interest at the rate of 18% per annum after the judgment and decree upto the realisation of the amount. Up to that extent the decree passed by the trial Court is a nullity and this objection can be entertained in the execution proceedings and also proceedings under Article 227 of the Constitution because if a decree is a nullity upto that extent the decree cannot be executed. Hence, the Executing Court has committed an error of jurisdiction in issuing the auction proceedings with regard to attachment of house of the petitioner. It is an admitted fact that the petitioner has already deposited an amount of Rs.2,76,000/- and that is prima facie sufficient with regard to realisation of the loan amount.” 5. It is submitted that, as a matter of fact, the controversy involved in this petition stands settled by the aforesaid order between the parties, hence, it is prayed that this writ petition may be allowed setting aside the impugned order passed by the executing Court. 6. Having perused the order passed by the coordinate Bench and also upon consideration of the judgments of various High Courts, in the light of the provisions as contained in section 34 CPC, this Court agreeing with the view taken by the coordinate Bench holds that the executing Court has committed an error on the face of record having refused to accede to the prayer of the petitioner/judgment debtor for consideration of reduction of rate of interest from 18% to 6% awarded by the trial Court, as the award of 18% interest by the trial Court upto the date of realization of the amount is contrary to the provisions of section 34 of CPC. Accordingly, the impugned order dated 13.3.2009 is set aside. The executing Court is directed to decide the application afresh in the light of the order of the coordinate Bench of this Court dated 28.7.2008 in writ petition No.5917/2006 bearing in mind that the petitioner, as stated at the Bar, has already deposited Rs.83,000/- before the executing Court towards realization of the dues. 7. With the aforesaid directions, writ petition stands disposed of. ..................