S RAMASWAMI CHETTY Vs. B VENKATARAMA REDDI

JUDGEMENT

(1.) This is an appeal against the order of the Subordinate Judge of Chittoor in E.P. No. 3 of 1947 in O. S. No. 51 of 1940 on the file of that Court. The preliminary decree in O. S. No. 51, directed the payment of a sum of money as maintenance to one Venkatarangamma who was the plaintiff in that suit with a charge on certain items of property which are now sought to be sold. The judgment-debtors in that suits are the contesting respondents now. The preliminary decree came up in appeal to this Court in A. S. No. 178 of 1913 and Leach C. J. and Shahabuddin J. modified the same by enhancing the rate of maintenance from Rs. 75 a month to Rs. 100 a month. The charge allowed on certain properties was left intact. Since the judgment-debtor did not act according to the preliminary decree, a final decree was passed for sale of the properties on 6-7-1946. It has to be mentioned that before the final decree was passed, Venkatarangamma assigned her rights to Venkatarama Reddi, the present contesting respondent, and he it was who applied for getting the final decree and got it on 6-7-1946.

(2.) Execution Petition No. 3 of 1947 was an application by the assignee decree- holder who got the final decree in his favour, under Order 21, Rule 66, Civil P. C., praying that the schedule properties may be sold for the realisation of the amount due under the decree. The application was resisted by the judgment- debtors on the ground that though the final decree stated that the decree- holder was entitled to subsequent interest as may be payable, under Rule 11 of Order 34, Civil P. C., on the decretal amount, there was no rate of interest fixed and therefore the claim of the assignee decree-holder for interest on the decree amount is not sustainable. Order 34, Rule 11 only allows the award of interest but does not fix any rate of interest and it is left to the Court to fix the reasonable interest or the contract rate between the parties and since the final decree also does not mention any rate of interest, it was contended for the judgment-debtors before the lower Court that no interest could be awarded in favour of the assignee decree-holder. The learned Subordinate Judge did not accept this contention but held that the plaintiff can claim interest on the amount claimed by him from the date of the final decree. The learned Judge did not give any authority for his view but held that the decree-holder was entitled to interest. Aggrieved by this decision of the learned Judge, the judgment- debtors have preferred this appeal.

(3.) The only question that need be considered is whether, if a decree directs the payment of interest but does not stipulate the rate of interest payable, it is open to the executing Court to fix any reasonable rate of interest and direct the payment of that interest to the decree-holder. Learned counsel for the appellants contends that the executing Court cannot add to the de. cree by fixing a rate of interest and he relies on the observations at pp. 962, 966 and 968 of the decision in Pankuni Menon v. Raman Menon, 54 Mad. 955 (A.I.R. (18) 1931 Mad. 650 F. B.). In that case four Judges forming the majority of a Pull Bench of five were of opinion that where a decree allows the payment of mesne profits but does not fix the rate of interest on the profits realised by the persons in wrongful possession then it is not open to the executing Court to award any interest at all or fix any reasonable rate as that Court may deem fit. At p. 962 of the report, Ananthakrishna Aiyar J. with whom the three other learned Judges, Beasley C. J., Eamesam and Sundram Chetti JJ. agreed, observes as follows :