Punjab-Haryana High Court
Chanan Singh vs Punjab National Bank And Anr. on 17 March, 1992
Equivalent citations: (1992)101PLR647
Author: Ashok Bhan
Bench: Ashok Bhan
JUDGMENT Ashok Bhan, J.
1. Chanan Singh, petitioner, took a loan of Rs. 49,700/- from the respondent-Bank on 8th June, 1982 for the purchase of Tractor. The loan was to be repaid within seven years. Petitioner paid Rs. 24,155/- by way of instalment and thereafter defaulted in the payment of instalments.
2. Respondent-Bank filed a suit on 3rd of March, 1987 for the recovery of Rs. 63,180/-. Petitioner made certain payments during the pendency of the suit as well and ultimately on 19th May, 1988, an exparte decree was passed against the petitioner for the recovery of Rs. 48,180/- with future interest at the rate of 12½ per cent per annum.
3. Respondent-Bank filed an execution petition in which objections were filed by the petitioner-judgment debtor. One of the objections taken was that the decree-holder-bank has been granted future interest at the rate of 12½ per cent per annum till realisation which is an excess and which should not have been more than 6 per cent per annum. This objection was rejected by the executing Court by the impugned order dated 22nd February, 1990 on the ground that the executing Court cannot go behind the decree and has to execute the same as it was Aggrieved against the aforesaid order, the judgment debtor-petitioner has filed the present revision petition.
4. The only contention which has been raised by the counsel for the petitioner is that the executing Court could go into the question regarding the rate of interest at the stage of the execution of the decree and further that future interest could not be allowed more than 6 per cent at the decretal amount. In support of the contention, the counsel for the petitioner relied upon Makhan Singh v. Union of India, (1989-1) 95 P.L.R. 703. On the other hand, the learned counsel for the respondent-Bank submitted that the interest is to be calculated under Order 34 Rule 11 of the Code of Civil Procedure and that being so, provisions of Section 34 of the Code of Civil Procedure as such were not applicable to the suit based upon a mortgage.
5. I have taken into consideration the submission made by the counsel for the parties and in my view the case is squarely covered by two judgments of this Court reported as Smt. Usha Sachdeva and Ors. v. Life Insurance Corporation of India, (1991-1) 99 P.L.R. 579 and M/s. S.M. Enterprises Faridabad v. State Bank of India, (1991-2) 100 P.L.R. 410, wherein it has been held as under:-
"Admittedly, the suit was filed for the recovery of the amount on the basis of the mortgage deed for a preliminary decree under Order XXXIV Rule 4 of the Code. Order XXXIV Rule 11 of the Code inter alia provides that 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 mortgagee as provided therein. Thus, the provisions of Section 34 of the Code are not attracted to such a suit. Moreover, the decree was passed on the basis of the admission made by the defendants before the trial Court and, therefore, this objection was no more available to him in execution proceedings".
6. Admittedly, the present suit was filed for the recovery of the amount due on the basis of the mortgage deed under Order 34 Rules 4 and 11 of the Code of Civil Procedure. Rules 4 and 11 of Order 34 provides that 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 provided therein. Thus, the provisions of Section 34 of the Code of Civil Procedure are not attracted to such a suit and Court had rightly determined the principal amount and the amount of interest payable thereupon as agreed to between the parties.
7. For the reasons recorded above, I find no merit in this revision petition and the same is dismissed with no order as to costs.