Allahabad High Court
Smt. Karuna Bala Varshney & Another vs Shyam Sunder on 19 September, 2017
Author: B. Amit Sthalekar
Bench: B. Amit Sthalekar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 6 Case :- WRIT - C No. - 1554 of 2003 Petitioner :- Smt. Karuna Bala Varshney & Another Respondent :- Shyam Sunder Counsel for Petitioner :- J.J. Munir Counsel for Respondent :- S.C,Pankaj Agarwal,V.K. Gupta Hon'ble B. Amit Sthalekar,J.
1. Heard Sri J.J. Munir, learned counsel for the petitioners and Sri Pankaj Agarwal, learned counsel for the respondents.
2. By this writ petition the petitioner is challenging the order dated 26.09.2002 passed in Civil Revision No.178 of 2000 as well as the order dated 08.11.2000 passed in Execution Case No.05 of 2000.
3. Briefly stated the facts of the case are that the plaintiffs/petitioners filed a Suit No.526 of 1987 before the Court of Civil Judge, Aligarh seeking recovery of a sum of Rs.22,233.60 with pendente lite and future interest. The allegation in the plaint was that a sum of Rs.15,000/- was borrowed by the defendant/respondent from the plaintiffs/petitioners and was to be repaid as loan with interest at 2% per annum. It is stated that there occurred a default when the loan was not paid. The trial court framed issues and after hearing the parties and going through the evidence on record decreed the suit for a sum of Rs.15,000/- together with interest on this amount to be computed at 10% simple interest per annum till the full and final payment was made. Against the judgment and decree of the court below the defendant/respondent filed Appeal No.99 of 1999 in the court of District Judge, Aligarh, which was dismissed on 29.11.1999. It is stated that thereafter the decree became final between the parties. It is further stated that the plaintiffs/petitioners then initiated execution proceedings by filing an application which was registered as Execution Case No.05 of 2000 claiming interest pendente lite from 16.09.1987 to 16.12.1999 covering the period from the institution of the suit till the date of the decree. The total sum claimed was Rs.43,424/-. Notices were issued, respondent filed his objection under Order XX Rule 11 CPC claiming that he be allowed to pay the decretal amount in installments. The application was registered as Misc. Case No.54 of 2000. The petitioners filed their objection under Section 47 C.P.C. stating that interest claimed in the Execution Application was erroneous and that the application may be allowed as per terms of the decree. This application was registered as Case No.58 of 2000 in the leading Execution Case No.05 of 2000. The Executing Court by its order dated 08.11.2000 dismissed the objection filed by the respondent under Order XX Rule 11 for permission to pay the decreetal amount in installments. The plaintiffs'/petitioners' objection that they may be allowed to claim interest pendente lite from 16.09.1987 to 16.12.1999 was also rejected. Aggrieved, the plaintiffs/petitioners filed revision before the District Judge being Civil Revision No.178 of 2000 which was dismissed by the Additional District Judge, Aligarh affirming the order of the Executing Court. Hence the present writ petition.
4. Sri J.J. Munir, learned counsel for the plaintiffs/petitioners submitted before this Court that the language in which the decree is couched leaves no doubt that it included interest pendente lite. The submission is that the Court no doubt provided for future interest on the decreetal amount of Rs.15,000/- at a simple interest of 10% per annum but because the petitioners had a genuine cause of action and were prosecuting their suit from 16.09.1987 upto 16.12.1999 they were entitled to interest pendente lite.
5. The further submission of the learned counsel for the plaintiffs/petitioners is that sub-section 2 of section 34 of the Code of Civil Procedure (hereinafter referred to as C.P.C.) clearly stipulates that where the decree is silent with respect to the payment of future interest on such principal sum from the date of the decree to the date of payment or other earlier date the court shall deem to have refused such interest. Section 34 of C.P.C. reads as under:
34. Interest.- (1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, 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 six per cent per annum, as the court deems reasonable on such principal gum, from the date of the decree to the date of payment, or to such earlier date as the court thinks fit:Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalized banks in relation to commercial transactions.
Explanation I: In this sub-section, "nationalized bank" means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970).
Explanation II: For the purposes of this section, a transaction is a commercial transaction, if it is connected with the, industry, trade or business of the party incurring the liability.
(2) 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 there for shall not lie."
6. Sri Munir further submitted that under sub section 1 of Section 34 CPC the court may 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 and therefore since in the present case the Court had held the defendant/respondent herein to be liable to pay simple interest at 10% per annum on this amount till the date the decree is satisfied therefore the interest pendente lite must be read as sine qua non to sub section 1 of section 34 of the Code.
7. In my view, the submission of the leaned counsel for the plaintiffs/petitioners has no substance.
8. First, sub section 1 of section 34 provides that the Court may, so far as the decree is for payment of money, order interest at such rate as the Court deems reasonable from the date of the suit to the date of the decree. The word may in the section cannot be read as mandatory as it confers discretion on the Court to award interest pendente lite or future or both. The award of interest from the date of the suit to the date of the decree has been held to be entirely within the discretion of the Court as held by the Supreme Court in the following cases:
A. Mahabir Prasad Vs. Durga Dutta, AIR 1961 SC 990 B. State of M.P. and Others v. Nathabhai Desaibhai Patel, (1972) 4 SCC 396 C. Indian Insurance and Banking Corporation Ltd. v. Mani Paravathu and Another, (1971) 3 SCC 893 D. Laxmichand v. Indore Improvement Trust, Indore and Another, (1975) 1 SCC 565 E. Executive Engineer (Irrigation), Belimela and Others v. Abhaduta Jena and Others (1988) 1 SCC 418.
9. The Punjab and Haryana Court while deciding the Civil Revision No.2631 of 1994, Central Bank of India v. (M/s) Ved Prakash Krishan Kumar has held as under:
"7. A cumulative reading of the judgement and decree passed by the trial Court on 22.03.1986 clearly shows that the Court had taken note of the claim made by the bank and had decreed the suit for recovery of Rs.2,19,143.52 with future interest. The rate of future interest was fixed as per the terms of the contract, i.e. 19 ½ % per annum. The expression "future interest at the contractual rate" cannot be read as including within itself interest pendente lite. The trial court must be deemed to be aware of the provisions of Section 34, Civil Procedure Code as also the Order 34, Rule 11, Civil procedure Code which enables the Court to award interest pendente lite as well as future interest. Absence of a reference to interest pendente lite clearly shows that the trial Court did not consider it proper to award interest pendente lite. Whether this was justified or not is a different thing. However, in the absence of a clear stipulation regarding interest pendente lite, the executing Court was not in error in taking the view that interest pendente lite has not been decreed by the Court on 22.03.1986. I am further of the view that if at all the decree holder petitioner thought that the trial Court should have awarded interest pendente lite, it was open to the decree-holder to file an appeal against the judgment of the trial court in so far as it denied the interest pendente lite. That has not been done. Therefore, the contention of Shri Arora that the decree passed by the trial Court on 22.03.1986 should be construed as including within itself a direction for payment of interest pendente lite cannot be upheld."
10. In 2007 4 ALJ 794 (Abdulla S/o Bathumi (Deceased) v. Smt. Shyama Devi and Another a learned Single Judge of this Court held as under:
"11. In the decree, neither any interest was awarded from the date of the suit, i.e. 01.08.1970 (from which date mesne profits @ Rs.500/- per month were awarded), till the date of decree, i.e. 21.03.1978, nor from the date of decree till actual payment. If interest has not been awarded by the decree, then Executing Court has got absolutely no jurisdiction to direct payment of interest and this is what both the court below have held. They have rightly refused to grant any interest."
11. Similarly in State of Punjab and Others v. Krishan Dayal Sharma (2011) 11 SCC 212 in paragraphs 6, 7, 8 and 9 it has been held:
"6. There is no dispute between the parties that the decree which was put to execution did not contain any order or direction for the payment of any interest on the amount which was payable to the decree holder consequent to the declaration made by the Court decreeing the respondent's suit. There is further no dispute that no relief for interest had been claimed by the respondent in the suit nor any such claim was discussed or awarded by the Court decreeing the suit.
7. In the absence of pleadings and directions in the judgment or decree which was under executing, it was not open to the executing court to award interest. The Execution Court is bound by the terms of the decree, it cannot add or alter the decree on its notion of fairness or justice.
8. The right of the decree-holder to obtain relief is determined in accordance with the terms of the decree. The Execution Court has referred to a number of decisions where interest had been granted on the arrears of salary and pension. The Executing Court failed to appreciate that in those decisions direction for payment of interest had been issued by the Court while granting relief for reinstatement or payment of arrears of salary or pension. None of those decisions relate to the grant of interest by the Executing Court. No doubt the Courts have power to award interest on the arrears of salary or pension or other amount to which a Government servant is found entitled having regard to the facts and circumstances of the case but that power cannot be exercised by the Executing Court in the absence of any direction in the decree.
9. In this view the executing court in the instant case acted in excess of its jurisdiction in awarding interest to the respondent decree-holder. In the result, we allow the appeal, set aside the order of the Executing Court awarding interest to the decree-holder. There will be no order as to costs."
12. In Vellathusseri Chakkala Kumpil Pankunni Menon v. Vellathusseri Chakkala Kumpil Raman Menon, (AIR) 1931 Madras 650 (FB) the Full Bench of the Madras High Court has held as under:
"The Court when passing the final decree fixing the amount of mesne profits under Order 20, Rule 12(2) has, therefore, to fix the amount of profits and also the rate at which interest on the amount ascertained by it should be awarded to the plaintiff. If for any reason it should decline, or omit, to award interest in the final decree, the party feeling aggrieved thereby should take appropriate proceedings either by way of appeal or otherwise, to have interest included and the decree set right by its inclusion. If, however, he should allow such a decree to become final, then he could not in execution proceedings claim interest on the amount mentioned in the final decree. It is a settled principle of law that when a decree is unambiguous on its face, the executing Court cannot go behind the decree. A decree, even though it may not be according to law is binding and conclusive between the parties until it is set aside either on review, appeal or revision. The Court executing a decree cannot alter, vary, or add to, the terms of the decree under the guise of executing the decree--(questions of adjustment of decree by consent of parties apart). When a decree is ambiguous, it has been held that a reference to the pleadings and judgment is legitimate. If the decree is based upon, or refers to, another document, then reference to the same in such cases would be permissible, in order to understand what the decree really means. Though therefore the executing Court is entitled, and is in fact bound, to construe the decree of which execution is sought, it is not entitled to add to the terms of the decree. If on its construction of the decree, the executing Court comes to the conclusion that the decree does not award interest on the amount of profits mentioned in the final decree, it is not open to the executing Court to fix the rate of interest itself when the same has not been fixed in the final decree. As already mentioned, it is a question of the construction of the final decree in each case, whether the same either specifically, or by necessary reference to the documents referred to by it, awards and fixes the rate of interest; but when the final decree does not award interest in that manner, it is clear that it is not open to the executing Court to fix the rate of interest and then to execute the decree allowing interest."
13. In Ouseph Ouseph v. Souriyar Thomman, (AIR) 154 Travancore-Cochin 473 a Full Bench of the High Court has held in paragraph 27 as under:
"27. Lastly there is the question whether the claim for interest on mesne profits is sustainable. The matter arises in execution of the decree which simply awarded a specified amount by way of mesne profits and is silent on the question whether that amount would carry future interest or not. The argument advanced on behalf of the appellant is that the executing Court is not competent to allow the decree-holder to realize interest also because to do so would be adding to, and varying the terms of, the decree. This question was considered in all its aspects by a Full Bench of five Judges of the Madras High Court in "Pankunni Menon v. Raman Menon, AIR 1931 Mad 650 (FB) (Z11) and it was ruled in that case that when the final decree which fixes the quantum of mesne profits is silent as to interest, it is not open to the executing Court to fix a rate of interest and to execute the decree allowing such interest also. The earlier decision of the same Court in -Raja of Bobilli v. Ayyagari Sodemma, AIR 1927 Mad 954 (Z12), where a contrary view was taken, was overruled by the Full Bench and in doing so the decision of the Privy Council in -Girish Chunder Lahiri v. Shoshi Shikhareswar Roy, 27 Cal 951 (Z13) was also explained."
14. The question in the present case is whether the Court which while decreeing the plaintiffs' suit had no doubt awarded future interest but was silent with regard to the pendente lite interest, therefore, whether award of pendente lite interest could be read into the decree of the Trial Court.
15. In my opinion, the judgment of the Executing Court or the Revisional Court do not suffer from any illegality or infirmity as the law is well settled that the Executing Court cannot go behind the decree. The spirit and intent of the decree is to be culled out from the language in which the decree is couched. The original decree must speak for itself and cannot allow itself to become the subject matter of interpretation, so much so that what the Court did not intend to do in the decree is sought to be achieved through interpretation. Without doubt the Court while decreeing the plaintiffs/petitioners suit had directed that on the decreetal amount of Rs.15,000/- they would be entitled to a simple interest of 10% per annum till the decreetal amount is paid. This is a clear pointer towards the award of future interest by the trial court. If the court had intended that the plaintiff should also be entitled to interest pendente lite it would have spelled out its intent in so many words. The decree can in no terms be said to be ambiguous so far as pendente lite interest is concerned. If it is silent so far as award of pendente lite interest is concerned the only presumption in law would be that the same has by deliberate intent been declined by the Court.
16. Sub-Section 2 of Section 34 of the C.P.C. itself provides a clue to the interpretation of the will and intent of the trial court while decreeing the suit as to whether the Court intended to grant interest for a particular period or not. Though, sub-section 2 of section 34 is with regard to the payment of further interest on the principal amount from the date of the decree to the date of payment or earlier date it provides that the Court shall be deemed to have refused such interest and a separate suit therefore, shall not lie the words "or other earlier date" would squarely be covered in period pendente lite and therefore, if the decree in the present case is silent with regard to the payment of interest from the date of the suit till the date of the decree it must be presumed that the trial court had refused such interest.
17. It is an equally well settled principle of law that the Executing Court cannot go behind the decree. The Supreme Court in Rameshwar Dass Gupta v. State of U.P. and Another (1996) 5 SCC 728 in paragraph 4 has held:
"4. It is well settled legal position that an executing Court cannot travel beyond the order or decree under execution. It gets jurisdiction only to execute the order in accordance with the procedure laid down under Order 21, CPC. In view of the fact that it is a money claim, what was to be computed is the arrears of the salary, gratuity and pension after computation of his promotional benefits in accordance with the service law. That having been done and the court having decided the entitlement of the decree-holder in a sum of Rs.1,97,000/- and odd, the question that arises is whether the executing Court could step out and grant a decree for interest which was not part of the decree for execution on the ground of delay in payment or for unreasonable stand taken in execution ? In our view, the executing Court has exceeded its jurisdiction and the order is one without jurisdiction and is thereby a void order. It true that the High Court normally exercises its revisional jurisdiction under Section 115, CPC but once it is held that the executing Court has exceeded its jurisdiction, it is but the duty of the High Court to correct the same. Therefore, we do not find any illegally in the order passed by the High Court in interfering with and setting aside the order directing payment of interest."
18. The Supreme Court in V. Ramaswami Aiyengar and Others v. T.N.V. Kailasa Thevar, (AIR) 1951 SC 189 in paragraphs 7 and 8 has held:
"7. It seems to us that the High Court's approach to the case has not been a proper one and the conclusion it has reached cannot be supported in law.
8. The learned Judges appear to have overlooked the fact that they were sitting only as an executing court and their duty was to give effect to the terms of the decree that was already passed and beyond which they could not go. It is true that they were to interpret the decree, but under the guise of interpretation they could not make a new decree for the parties."
19. Therefore, on a conspectus of facts and the law laid down, I do not find any illegality or infirmity in the impugned orders. The writ petition lacks merit and is accordingly dismissed.
Order Date :- 19th September, 2017 N Tiwari