Andhra HC (Pre-Telangana)
O. Sreenivasulu vs Smt. P. Santhi on 7 December, 2006
Equivalent citations: AIR2007AP115, 2007(2)ALD175, 2007(2)ALT673, AIR 2007 ANDHRA PRADESH 115, 2007 (3) ALJ (NOC) 436 (A.P.) = AIR 2007 ANDHRA PRADESH 115, 2007 (2) AJHAR (NOC) 646 (A. P.) = AIR 2007 ANDHRA PRADESH 115, 2007 (3) ABR (NOC) 514 (A. P.) = AIR 2007 ANDHRA PRADESH 115, 2007 AIHC (NOC) 264 (A. P.) = AIR 2007 ANDHRA PRADESH 115
ORDER A. Gopal Reddy, J.
1. This revision is filed assailing the correctness of the order passed by the Senior Civil Judge, Kandukur in E.P. No. 16 of 2005 in O.S. No. 47 of 2004 dated 20.4.2006.
2. For due execution of the decree of maintenance obtained by the Decree Holder, wife of the petitioner herein, in O.S. No. 47 of 2004, she filed E.P. No. 16 of 2005 for recovery of the arrears of maintenance amount together with interest. The petitioner-Judgment Debtor raised an objection stating that the decree holder is not entitled to payment of interest in the absence of decree providing for such payment. The learned Senior Civil Judge by the impugned order held that the objection raised by the judgment debtor that the decree holder is not entitled to interest is not tenable and accordingly ordered to call for salary particulars of the judgment debtor and simultaneously attached the E.P. schedule property.
3. Being aggrieved by the aforesaid order, the decree holder filed the present revision petition contending that the decree holder is not entitled to interest as the decree does not contain a provision for the same and the executing court cannot go beyond the decree.
4. In spite of service of notice on the respondent-decree holder through the counsel for the petitioner, neither the respondent nor her counsel has chosen to put up appearance. Therefore, I have heard learned Counsel for the petitioner.
5. Learned Counsel for the petitioner confined his arguments only with regard to ordering interest on the E.P amount. Learned Counsel contended that the Court below has not properly appreciated Section 4(2)(d) of the Interest Act and erred in granting interest in the execution proceedings. According to the learned Counsel, Section 4(2)(d) of the Interest Act has no application to the decree and as such the order of the executing Court awarding interest is without jurisdiction and hence liable to be set aside.
6. Admittedly, in the decree passed in O.S. No. 47 of 2004 dated 31.1.2005, the Court has not awarded any interest except awarding maintenance to the decree holder at the rate of Rs. 700/- per month towards maintenance of the decree holder, apart from awarding accommodation charges of Rs. 6,000/- per annum, Rs. 2,000/- per annum towards clothing charges , Rs. 2,000/- per annum towards medicine charges; Rs. 1600/- per annum towards utensils, entertainment and library and other unforeseen expenditure, in all aggregating to Rs. 20,000/- per year from the date of suit i.e. 5.10.2001. A charge has also been created over the suit schedule property for the said amount and the rest of the suit claim has been dismissed. No interest has been awarded by the Court on the aforesaid amounts.
7. Sub-section (1) of Section 4 of the Interest Act, 1978 authorizes payment of interest notwithstanding anything contained in Section 3 of the said Act in all cases in which it is payable by virtue of any enactment or other rule of law or usage having the force of law. Sub-section (2) of Section 4, which is relevant, reads as under:
(2) Notwithstanding as aforesaid, and without prejudice to the generality of the provisions of Sub-section (1), the Court shall, in each of the following cases, allow interest from the date specified below to the date of institution of the proceedings at such rate as the Court may consider reasonable, unless the Court is satisfied that there are special reasons why interest should not be allowed, namely:
(a) where money or other property has been deposited as security for the performance of an obligation imposed by law or contract, from the date of the deposit;
(b) where the obligation to pay money or restore any property arises by virtue of a fiduciary relationship, from the date of the cause of action;
(c) where money or other property is obtained or retained by fraud, from the date of the cause of action;
(d) where the claim is for dower or maintenance, from the date of the cause of action.
From the above, it is clear that notwithstanding the provision contained in Sub-section (1) of Section 4, under Sub-section (2) of Section 4, the Court shall, where the claim is for dower or maintenance, allow interest from the date of the cause of action to the date of institution of the proceedings at such rate as the Court may consider reasonable, unless the Court is satisfied that there are special reasons why interest should not be allowed.
There cannot be any dispute about the aforesaid provisions. At this stage, it is necessary to refer to Section 5 of the Interest Act, which reads as follows:
5. Section 34 of the code of Civil Procedure, 1908 to apply: Nothing in this Act shall affect the provisions of Section 34 of the Code of Civil Procedure, 1908.
8. Therefore, the applicability of Section 34 of the Code of Civil Procedure, which deals with interest component, is not affected by the operation of Section 4(2)(d) of the Interest Act, 1978. We are not concerned with the circumstances under which and when the provisions of Section 4(2)(d) of the Interest Act would be made applicable. However, the fact remains that where the Civil Court grants a decree for the payment of money, Section 34 of the Code of Civil Procedure swings into operation. Under Sub-section (1) of Section 34 of the Code, the Court which passed the decree can 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 6% 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. Sub-section (2) of Section 34 of the Code envisages that where such a decree is silent with respect to the payment of further interest on such principal sum from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefor shall not lie.
9. In the instant case, there cannot be any dispute about the applicability of Section 34 of the Code of Civil Procedure to the decree passed by the Civil Court. Therefore, once the decree is silent with respect to the payment of interest from the date of cause of action or from the date of the institution of the suit, executing Court cannot go beyond the decree and award interest as claimed in the execution petition. Payment of interest on a sum claimed by the plaintiff or a sum, which has been adjudged by the Court as payable in the proceedings to the plaintiff, is an issue, which has to be pleaded and decided by the Court in the suit itself. If the Court has not adjudged any interest to be payable on the principal sum even though it is pleaded or it refused to grant the interest, then, in execution proceedings initiated by the decree holder, the executing Court cannot go into the same and decide the issue. The executing court is bound by the terms of the decree and it cannot, while executing the decree, go beyond the terms of the decree. It has no authority or jurisdiction to award interest contrary to the decree. The executing court has not properly appreciated Section 4(2)(d) of the Interest Act, 1978 and erred in holding that the objection of the revision petitioner is not tenable and failed to note that interest which was not awarded in the decree is not an issue which can be gone into by it. Therefore, award of interest by the executing Court to the decree holder on the sums adjudged by the Civil Court contrary to the decree cannot be sustained and to that extent the order of the executing court is liable to be set aside. The court below has committed an illegality in ordering interest as claimed and the order has been passed without jurisdiction. If the decree holder so thinks that she is entitled to interest as the amount is not paid on the dates due, it is open for the decree holder to work out her remedies, if so advised, by instituting appropriate proceedings in appropriate forum, as per law, but the executing Court is not empowered to award interest which is not awarded in the suit.
10. In result, the revision petition is allowed and the order of the executing Court to the extent of awarding interest is hereby set aside. No costs.