Jammu & Kashmir High Court
State Of J&K; And Ors vs Sat Paul And Co on 22 December, 2017
Author: Alok Aradhe
Bench: Alok Aradhe
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
CREV No.75/2013, MP No.76/2013
Date of order: 22.12.2017
State of J&K and Ors. Vs. Sat Paul and Co.
Coram:
Hon'ble Mr. Justice Alok Aradhe, Judge
Appearing counsel:
For Petitioner/Appellant(s) : Mr. S K Anand, Advocate.
For respondent (s) : Mr. M P Kapoor, Advocate.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
The Revision is admitted for hearing. With consent of the learned
counsel for the parties, the same is heard finally.
In this Revision petition, the petitioners have assailed the validity of
the order dated 16.08.2013 passed by the execution Court by which it has
been directed that the amount by the decree holder in the year 2003-2004
shall be adjusted towards interest and has directed the petitioners to
recalculate the amount and deposit the same in the Court.
When the matter was taken up today, learned counsel for the
petitioners submitted that the impugned order has been passed in ignorance
of the provisions contained under Order 21 Rule 1(3)(c) of the CPC,Svt.
1977 inasmuch as the petitioners were not given the liberty to indicate
whether the amount deposited by the petitioners shall be adjusted towards
the principal amount or towards the interest or costs. Learned counsel for
the petitioners has submitted that the petitioners have deposited the entire
decretal amount.
CREV No.75/2013, MP No.76/2013 Page 1 of 3
On the other hand, learned counsel for the respondents has submitted
that order passed by the Trial Court is perfectly just and legal. It is further
submitted that money decree was passed and the Court had not prescribed
any mode for payment. It is further submitted that the amount is required to
be adjusted towards the interest. In support of the aforesaid submissions,
reference has been made to the decisions of the Supreme Court in the cases
of Mathunni Mathia v. Hindustan Organic Chemicals Limited and
another, AIR 1995 SC 1572; M/s Industrial Credit and Development
Syndicate v. Smt. Smithaben H. Patel and Ors, 1999 (2) Supreme 66.
I have considered the submissions made by learned counsel for the
parties and have perused the record. Order 21 Rule 1(3) of the CPC, the
relevant extract of which, reads as under:
1. Modes of paying money under decree
---------
"(3) Where money is paid by postal money order or through a bank under clause (a) or clause (b) of sub-rule (1), the money order or payment through bank, as the case may be, shall accurately state the following particulars, namely:-
(a)-----
(b)------
(c) how the money remitted is to be adjusted, that is to say, whether it is towards the principle, interest or costs;
The aforesaid provision applies to the case where the judgment debtor deposits the amount in the Executing Court. In the instant case, the judgment debtor not deposited the amount before the Executing Court and the amount has been recovered by attachment of the account of the petitioner. Therefore, the aforesaid provision has no application to the fact situation of the case. It is well settled in law that the general rule of appropriation of payments towards a decretal amount is that such an amount is to be adjusted firstly strictly in accordance with the directions contained in the decree and in the absence of such direction, adjustment be CREV No.75/2013, MP No.76/2013 Page 2 of 3 made firstly in payment of interest or costs and, thereafter, in payment of principal amount. However, the aforesaid principle is subject to one exception, i.e., the parties may agree to the adjustment of the payment in any other manner despite the decree.
In the instant case, the decree does not provide for mode of payment of the amount. Therefore the amount deposited by the petitioners have rightly been adjusted by the Executing Court towards the interest. However, in view of contention raised by the petitioners that the entire decretal amount is deposited, the Execution Court is directed to ascertain as to whether or not the petitioners have deposited the decretal amount, before proceeding further with the execution proceeding.
With the aforesaid direction, the revision petition is disposed of, along with connected MP.
(Alok Aradhe) Judge Jammu 22.12.2017 Raj Kumar CREV No.75/2013, MP No.76/2013 Page 3 of 3