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2016 DIGILAW 239 (KER)

Seenath @ Seena v. Mohammed Ali

2016-02-29

C.K.ABDUL REHIM, SHAJI P.CHALY

body2016
JUDGMENT : Shaji P. Chaly, J. These Original Petitions are filed by the petitioner and respondent respectively against Ext.P6 order of the Family Court, Ernakulam in E.A. No. 134 of 2015 in E.P. No. 53 of 2014 in O.P. No. 2289 of 2012, dated 03.12.2015. By the said impugned order, the petitioner was granted four months time to pay the balance amount of Rs.15 lakhs with interest at the rate of 6% p.a. from the date of mediation agreement till the date of deposit, and coercive steps are kept in abeyance till such time. The petitioner/decree holder has filed O.P.(FC) No. 608 of 2015 contending that, 6% interest granted by the Family Court is on the lower side and the Family Court should have ordered at least 12% interest on Rs.30 lakhs from the date of agreement dated 24.06.2013 till the date of payment. On the other hand, O.P.(FC) No. 82 of 2016 is filed by the judgment debtor contending that the order imposing 6% interest by the Family Court as per the order impugned is illegal since as per the mediation agreement, there is no agreement for award of interest if the judgment debtor fails to pay the amount as per the settlement. Facts required for disposal of the Original Petitions are common in nature and the facts narrated in O.P. (FC) No. 608 of 2015 are stated hereunder: 2. The petitioner and respondent are wife and husband respectively. Their marriage was solemnized on 28.04.1991 as per Islamic rites and customs. Disputes arose by and between the parties and thereupon petitioner filed O.P. No. 2289 of 2012 before the Family Court, Ernakulam, seeking recovery of 200 sovereigns of gold ornaments or its market value of Rs.50 lakhs from the respondent and his assets and further seeking to recover Rs.10 lakhs with 12% interest from the respondent by creating charge over the two sets of property owned by the respondent. However, the dispute was settled between the petitioner and the respondent along with other pending disputes and Ext.P2 'Memorandum of Agreement' was drawn in the District Mediation Centre. Consequent to the said agreement, Ext.P2(a) decree was passed by the Family Court. 3. However, the dispute was settled between the petitioner and the respondent along with other pending disputes and Ext.P2 'Memorandum of Agreement' was drawn in the District Mediation Centre. Consequent to the said agreement, Ext.P2(a) decree was passed by the Family Court. 3. As per the compromise decree so passed, the respondent has agreed to pay an amount of Rs.30 lakhs to the petitioner within six months and if not the petitioner was provided with liberty to file Execution Petition and to realise the amount from the respondent. 4. The respondent failed to comply with the terms of Ext.P2(a) decree. Consequently, petitioner has filed E.P. No. 53 of 2014 and seven items of property were attached at the instance of the petitioner. It is the case of the petitioner that, respondent has sufficient financial resources, but saying one reason or other, is protracting payment in the execution proceedings. While so, respondent filed E.A. No. 100 of 2015 in the aforesaid Execution Petition seeking to release the attachment order in one item of property in order to sell it out and to wipe off the decree debt. The Family Court released the attachment so sought for on imposing a condition to remit the entire decree amount within two months, failing which, the decree holder was given the liberty to proceed against the property. Even though petitioner has filed E.A. No. 105 of 2015 in the said Execution Petition seeking to recall the warrant, the said application was dismissed by the Family Court, but however it was directed not to issue the warrant for two months as the respondent has agreed to pay off the decree debt within two months by effecting sale of property within the said period. 5. It is the case of the petitioner that by taking advantage of Ext.P4 order, respondent has sold one item of property and secured an amount of Rs.2 Crores. But the respondent has cared only to deposit an amount of Rs.15 lakhs and filed E.A. No. 134 of 2015 seeking time for deposit of balance amount. It is contended that despite the objection raised by the petitioner, Family Court granted four months time to pay the balance amount on condition that 6% interest p.a. is paid by the respondent from the date of mediation agreement till the date of deposit, by passing Ext.P6 order. It is contended that despite the objection raised by the petitioner, Family Court granted four months time to pay the balance amount on condition that 6% interest p.a. is paid by the respondent from the date of mediation agreement till the date of deposit, by passing Ext.P6 order. It is thus aggrieved, the decree holder has filed the Original Petition seeking to enhance the interest fixed to 12%. As stated earlier, the judgment debtor has filed the other Original Petition contending that the Family Court did not have power to impose 6% interest since there is no settlement entered into by and between the parties for award of interest. 6. Heard learned counsel for the petitioner and respondent in both the cases. 7. The question that is left for consideration is with regard to the imposition of 6% interest by the Family Court as a pre-condition to grant extension of four months time to deposit the balance decree amount of Rs.15 lakhs. As we have stated earlier, the subject matter of the dispute was settled in mediation and the terms of settlement were reduced into writing as per Ext.P2. Inter alia, an amount of Rs.30 lakhs was agreed to be paid by he judgment debtor to the decree holder and a decree was passed accordingly. However, there is no provision made under the settlement, for payment of interest if the amount of Rs.30 lakhs is not paid by the judgment debtor to the decree holder within the period of six months. On the other hand, yet another term of condition was incorporated under the agreement to the effect that, if the judgment debtor does not pay the decree amount as per the settlement, the decree holder is at liberty to file Execution Petition and realise the said decree amount. Therefore, it can be seen from Ext.P2 settlement and Ext.P2(a) decree that there is no provision for payment of interest if the judgment debtor fails to pay the amount within the said period of six months. 8. Now the question is whether the Execution Court is invested with any power to impose interest on the decree amount. It is the contention of the decree holder that while time was granted, instead of 6%, 12% interest should have been imposed by the Family Court, in order to mitigate the circumstances of granting extension for payment of balance amount. Now the question is whether the Execution Court is invested with any power to impose interest on the decree amount. It is the contention of the decree holder that while time was granted, instead of 6%, 12% interest should have been imposed by the Family Court, in order to mitigate the circumstances of granting extension for payment of balance amount. Learned counsel for the petitioner/decree holder further contended that, even if there is no provision made in the decree for payment of interest, the execution court is vested with powers to impose interest as a pre-condition for extension of time in order to do justice to the decree holder. It is also contended that fairness demands that interest is awarded by the Family Court. It is contended by the learned counsel that 6% interest awarded is only a very meagre amount and in order to compensate the decree holder appropriately, the Family Court should have awarded an interest of 12%. 9. Learned counsel for the decree holder has invited our attention to the judgment of the Apex Court in 'H.P. Housing & Urban Development Authority and another v. Ranjit Singh Rana' [2012 KHC 4172] and canvassed for the proposition that even if there is no provision for payment of interest, execution court is at liberty to impose interest. On a perusal of the facts and circumstances involved in the said case, it was concerning an arbitration award and the question considered there was, after the payment of entire award amount in court, whether the judgment debtor was liable to pay interest at the rate of 18%. In our view, the facts and circumstances involved in the said case has no bearing to the issue involved in the case at hand. 10. Yet another judgment pressed into service by the learned counsel for the decree holder is a judgment of the Madras High Court in 'M/s. Valarmathi Oil Industries and another v. M/s. Saradhi Ginning Factory' [2009 KHC 6911]. There the question considered was whether the proceedings under Sec.138 of the Negotiable Instruments Act could be continued in spite of settlement of the subject issue under the aegis of the Legal Services Authority. Learned counsel has invited our attention to one of the paragraphs and contended that it was held therein that the decree holder was entitled to execute the decree with interest. Learned counsel has invited our attention to one of the paragraphs and contended that it was held therein that the decree holder was entitled to execute the decree with interest. After going through the facts of that case, it is clearly discernible that as per the settlement under the Lok Adalat, a provision for interest was provided and it is under the said background, it is mentioned therein that the decree holder is entitled for interest and costs. The same also does not have any bearing to the facts and circumstances of the case involved. 11. Per contra, learned counsel for the judgment debtor contended that, since there is no provision under the settlement for interest, even if the decree amount is not paid within the time limit stipulated thereunder, the execution court is not vested with any power to impose any interest. Learned counsel has invited our attention to the judgment of the Apex Court in 'State of Punjab and others v. Krishnan Dayal Sharma' [ AIR 1990 SC 2177 ]. There the question considered was whether the execution court was entitled to grant any interest on the amounts due. Therein, the Apex Court held that there was no interest claimed in the suit and no direction was issued by the court in that regard, and therefore the amount of interest granted by the execution court is illegal. The said judgment of the Apex Court, in our view, solves the issue arisen with respect to the impugned order. There is no sanction of law to the execution Court, to modify or alter a decree. Moreover, Sec.34(2) of C.P.C prohibits a separate suit, where a decree is silent with respect to payment of further interest (on such principal sum) from the date of decree to the date of payment or other earlier date, the Court shall deemed to have refused such interest, and a separate suit thereof shall not lie. Which thus means, the decree once passed by a civil court is final and binding on all parties, unless modified in suitable proceedings. Therefore, the duty cast upon the execution court is to execute the decree, by resorting to the provisions of law and established principles. 12. It is well settled by this time that the power of the executing court is to execute a decree passed by a court in its original side. Therefore, the duty cast upon the execution court is to execute the decree, by resorting to the provisions of law and established principles. 12. It is well settled by this time that the power of the executing court is to execute a decree passed by a court in its original side. However harsh the course of the execution proceedings, the executing court is not entitled to add any interest to the decree amount. If the executing court ventures in any such exercise, the same is nothing but altering the decree passed by the court. So far as the facts of the case at hand is concerned, the decree holder and judgment debtor have entered into an agreement and by virtue of the same only a decree was passed. The decree did not contain any provision for realizing interest even if the judgment debtor failed to pay the decree amount as agreed upon. That apart, as per the terms of Ext.P2 agreement, there is a clear mention about the proceedings to be adopted by the decree holder if the judgment debtor fails to pay the decree amount, and it is agreed by and between the parties that if the decree amount is not paid, execution proceedings can be instituted for realisation of the amount. Therefore, if the parties while compromising the issue had any inclination to impose interest on refusal to pay the decree amount, there would have been a specific term with regard to the same in the agreement. Having not done so, the decree holder is only entitled to realize the decree debt in accordance with the terms of the agreement alone. 13. Therefore, we have no hesitation to arrive at a conclusion that Ext.P6 impugned order passed by the Family Court imposing 6% interest for extension of time for payment of balance decree amount cannot be sustained under law. Same is illegal and a clear error of jurisdiction conferred on the Family Court on the execution side. Therefore, Ext.P6 order is set aside to the extent of awarding interest of 6% against the judgment debtor. From Ext.P6 order, we understand that the extension granted to the judgment debtor expires on 03.04.2016. Same is illegal and a clear error of jurisdiction conferred on the Family Court on the execution side. Therefore, Ext.P6 order is set aside to the extent of awarding interest of 6% against the judgment debtor. From Ext.P6 order, we understand that the extension granted to the judgment debtor expires on 03.04.2016. Taking note of the circumstances and the prejudice that is caused to the decree holder consequent to the delay, we are sure that the Family Court will expedite the execution proceedings if the judgment debtor does not make the payment on or before the said date. In the result, Ext.P6 is quashed, and thereby allow O.P. (FC) No. 82 of 2016 and accordingly dismiss O.P.(FC) No. 608 of 2015, however subject to the above observation.