GOPAL CHAND BHALLA Vs. GOBIND SARUP

JUDGEMENT

(1.) THE facts necessary for the disposal of this appeal may briefly be stated 33 under: gobind Sarup obtained a decree against Gopal Chand and Jaswant kumar for a sum of Rs. 1,414/- together with costs and future interest at 6 per cent per annum, on 25tn of March, 1941. Execution proceedings were taken and on 14th of May, 1949, the judgment-debtors agreed to pay the decretal amount by instalments of Rs. 30/- per mensem. Only a few instalments were paid and there was a default whereupon the decree-holder look out the execution again on 31st of July, 1951. Gopal chand preferred objections and during the pendency of these proceedings there was again a compromise between the decree-holder on the one hand and Gopal Chand judgment-debtor on the other. As a result of this compromise, the executing Court passed the following order on 24th of November, 1951:

(2.) THE execution application, out of which the present appeal has arisen, was filed on 13th of November, 1954, for the recovery of the future interest. The decree-holder claimed that he was entitled to a sum of Rs. 1,128/10/ -. Objections were taken to this by Gopal Chand judgment-debtor as a result of which a number of issues were settled. We are only concerned with issues Nos. 1 and 2 which were as follows: (1) Is the execution application barred by time? (2) Is the decree-holder not entitled to claim interest? the trial Court dismissed the execution application but the learned District Judge held both the issues in favour of the decree-holder. On a further appeal filed by the Judgment-debtor, a learned Single Judge of this Court affirmed the order of the lower appellate Court.

(3.) WITH regard to the question whether the decree-holder was entitled to recover the interest or not, the main point urged before the learned Single Judge was that in the execution application filed on 31st of July, 1951, In which a compromise was entered into, there was no mention in column 7 of the application as to the amount of Interest calculated on that day and that in the katiat appended by the office it was stated that Rs. 1,265/-were due and, interest was never calculated ever in the calculation of the office. The argument was that, in fact, the judgment-debtor should be taken to have entered into a compromise for payment of this specific amount of Rs. 1,265/- and that impliedly the parties agreed that no interest would be charged. The learned single Judge went into this question and came to the conclusion that there was nothing in the statements of the parties relating to the compromise from which it could be inferred that interest was given up, and that, in any case, the lower appellate Court, on a consideration of the relevant material, having come to ithe conclusion that interest was never abandoned by the decree-holder, the finding was a finding of fact which was unassailable in second appeal. Though this point was urged before us by the learned counsel for the judgment-debtor, yet it is obvious that finding, which could not be challenged in second appeal, is not open to attack in the Letters Patent Appeal at all.