KRISHNA DAS MUKUND DAS Vs. MOHD AMIN

JUDGEMENT

(1.) THIS is a decree-holder's second appeal. The decree in suit No. 72 of 1951 for recovery of money was put into execution. The execution case was numbered as 7 of 1952 in the court of the Civil Judge, Varanasi. By a compromise in that case the decretal amount as claimed therein was paid in instalments and, in Execution First Appeal No. 176 of 1964, that execution case was ordered to be struck off by this Court's judgment dated 6th September 1966.

(2.) IT appears that when that execution application was made the amount of pendentelite interest accrued was only Rs. 3/11/- and that was the amount specified in the execution application. The compromise, it appears, was silent with regard to payment of pendentelite and future interest and the finding arrived at by this Court in the judgment dated 6th September, 1966, in Execution First Appeal No. 176 of 1964, is that the total amount of Rs. 8574/- as claimed in that execution case was paid up in full in instalments in accordance with the terms of the compromise. The question whether any pendentelite and future interest was claimable was not decided by this Court by its judgment dated 6th September, 1966 in Execution First Appeal No. 176 of 1964. IT was on the other hand observed ;

(3.) IT is not the law that where the decree awards pendentelite and future interest or damages and the interest or the damages are running and accruing from day to day when an application for execution made, the amount of interest or damages must be specified in full before it can be claimed by way of execution. As in the present case, although the execution of the decree must have been sought in full, the amount of pendentelite interest specified was the amount which had accrued due upto the date of the filing of the execution application. That could not in my opinion preclude the decree holder from recovering the full amount of pendentelite interest which accrued due, for if that had not been the law a decree-holder would be compelled to bring a fresh execution application every day or every month or every six months as the interest accrued due. Consequently when a compromise is arrived at there is always some give and take between the parties. The fact that the execution case was compromised shows that the judgment-debtor was not in a position to pay the entire decretal amount in lumpsum. If the decree holder had intended not to forgo the interest, he could have insisted on payment of the entire decretal amount then and there or to have insisted that the amount of instalments shall be in addition to the amount of interest and that the pendentelite and future interest accruing due on the decretal amount shall be paid in instalments every month. That was not the case here. IT appears clear to me that by agreeing to the compromise and accepting the payment of the decretal amount in instalments, the decree-holder must be deemed to have waived his claim for pendentelite and future interest. Since the terms of the compromise were observed by the judgment-debtor and the instalments were paid as agreed, there is no question as to what would have happened if the terms of the compromise had not been fulfilled. By fulfilment of the terms of the compromise the decree which was under execution stood satisfied. In the result it must be held that pendentelite and future interest could not now be recovered. In view of this finding it is unnecessary to go into the question of limitation. I may, however, indicate that the judgment of the lower appellate court mentions the filing of an objection under Order 21 rule 58 and a suit thereafter under Order 21 rule 63 and also another suit by decree-holder, and that the decree-holder was restrained by an interim injunction dated 16th October, 1958 from putting the house takes (?) in execution to sale. IT may be that if the period during which that injunction remained operative were excluded in computing the limitation for the execution application under section 15(1) of the Limitation Act, the execution application might have been within time, but I have not gone into the details of the matter in view of the finding arrived at by me that the decree stands fully satisfied.