V MUTHURAMALINGA THEVAR Vs. I KANNAN

JUDGEMENT

(1.) THIS review petition is against the judgment dated 12 -11 -1993 in C.R.P.No.2623 of 1990, which was actually a common judgment in the said civil revision petition and another connected S.A.No.1477 of 1988. In both the civil revision petition and the second Appeal, the defendant in O.S.No. 636 of 1982 on the file of the 8th Assistant City Civil Court, Madras is the petitioner and appellant respectively. Though both were heard together, learned counsel who appeared in both the matters, did not make separate arguments in the civil revision petition. While the second appeal was dismissed on merits, the civil revision petition was dismissed on the ground that no argument was advanced therein. Now, the petitioner in the civil revision petition has filed this review application.

(2.) THE Suit was for recovery of Rs. 8,125/ - with interest at the -Court rate - from the date of plaint (24 -12 -1981). The judgment by the trial court specifically stated that -the plaintiff is entitled to a decree for Rs.6,400/ - only -. In other words, it did not actually say any thing about interest. But the decree, as drafted by the trial court was for Rs.6,400/ - together with interest at 18 per cent per annum from 24 -12 -1981 till date of payment.

(3.) HOWEVER in this review application against the order in the Civil revision petition, it is contended by learned counsel for the petitioner that the abovesaid grant of 18% interest per annum is against Section 34, C.P.C. and so, the non -consideration of this aspect in the CRP, even though the counsel by oversight omitted to argue the CRP, is an error apparent on the face of record and hence, the review application could be entertained and the interest rate should be corrected to 6% which alone is -the court rate - prayed for by the plaintiff himself in the plaint, in the absence of any plea that the suit transaction was a commercial transaction. The decision in Kunjalu v. Jose (1993 -II M.L.J. 454), is relied onto contend that awarding of interest at 18% per annum in the decree in the above suit, as against the decision in the judgment therein that the plaintiff is entitled to a decree for Rs.6,400/ - only, is also wrong and an error apparent on the face of the record. The decision in Sigappiachi v. Palaniappa (A.I.R. 1972 MADRAS 463) (D.B), is also relied on. There it has been held that awarding of interest in a decree high than what is allowed by the Section 34 C.P.C is an error apparent of the face of the record and such awarding can be corrected in a review application under Order 47 Rule 1 C.P.C.