AVTAR SINGH Vs. STATE BANK OF PATIALA

JUDGEMENT

(1.) This revision petition is against the order of the Executive Court dated 28th September, 1991 whereby the petitioner's objections under Section 47 of the Civil Procedure Code read with Section 151 of the CPC have been dismissed. Facts in brief are that petitioner (judgment-debtor) applied for grant of agricultural term loan for purchasing a tractor and other Agricultural implements to respondent No. 1 (decree-holder) vide his application dated 28th March, 1990 and a loan of Rs. 49,900/- was granted to the petitioner for purchasing the tractor and other implements. An agreement of hypothecation dated 3rd April, 1980 was drawn in favour of respondent No. 1. Admittedly this amount was received by the judgment-debtor, and out of this amount he paid back a sum of Rs. 21,000/-.

(2.) Since the amount was due towards the petitioner, respondent bank filed suit No. 275 on 8th August, 1986 for recovery of Rs. 76,120/- i.e. Rs. 49,900/- as principal and Rs. 28,220.01 as interest and other expenses. The Bank further claimed interest pendente lite and future interest @ 12-1/2% by sale of hypothecated property. This suit was decreed on 29th September, 1987 and thereafter the present execution application for recovery of the decretal amount was filed. Objections were filed by the judgment-debtor claiming that he was a small landowner, depended upon agriculture only and that decree-holder was not entitled to interest which otherwise also had been wrongly calculated. Besides these, he made a prayer that instalments be allowed for payment of the decretal amount. Objection petition was dismissed but in appeal District Judge vide order dated 21st April, 1989 remitted the case of the Executing Court for a fresh decision. On remand the Executing Court allowed the petitioner to pay the decretal amount in easy instalments @ Rs. 12,000/- per instalment i.e. each payable on 1st July, 1989; 1st January, 1990 and 1st July, 1990 and so on till the clearance of the entire amount recoverable. In pursuance of this order of the Court petitioner deposited a sum of Rs. 60,000/- in instalments i.e. a sum of Rs. 12,000/- on 1st July, 1989; Ist January, 1990, 19th July, 1990; 3rd January, 1991 and on 19th July, 1991. Despite this deposit, decree-holder filed a fresh execution seeking recovery of the remaining amount upon which the petitioner filed fresh objections contending that in fact he has paid amount much in excess than what was due and even otherwise the decree-holder is not entitled to claim interest beyond the rate of 6% per annum from date of institution till the date of realisation in view of the provisions of Section 34 of the CPC. The executing Court, however, found no merit in any of the contentions raised by the judgment-debtor and accordingly dismissed the same with a further direction that after adjusting a sum of Rs. 60,000/- already paid by the judgment-debtor, the remaining amount be recovered with future interest @ 12% per annum. Section 47 of the CPC envisages determination of all questions relating to the execution discharge or satisfaction of the decree. In the present case despite various objections having been raised by the judgment-debtor, the Executing Court without framing issues as arose on the pleadings of the parties or giving any opportunity to the parties to adduce evidence in support of their respective contentions, has decided the objections raised merely after hearing the parties. Such a course is not envisaged by Section 47 of the Act. The contentions raised by the judgment-debtor in fact need close scrutiny. The first material objection which has been raised by the judgment-debtor is as to whether this loan was granted as a agricultural loan or it was a commercial transaction.

(3.) The determination of this question has a material bearing i.e. in case the loan is held to be for an agricultural purpose then in that case decree-holder cannot recover future interest at the rate exceeding 6% per annum whereas in case of a commercial transaction, there is no such limitation. The observation of the Executing Court that the present suit was in substance under Section 34 order of the CPC is indeed difficult to comprehend. Petitioner asserts that it was a simple suit for recovery of the amount due and this way the Executing Court has erred in invoking the provisions of Order 34 CPC. Beside, this there is categorical averment made by the petitioner that the loan raised by him was for purchase of tractor and other implements. If this be true decree-holder in law is not entitled to interest exceeding 6% in terms of Section 34 of the CPC. Decree or judgment which has been passed in contravention of the provisions of Section 34 of the CPC would be without jurisdiction and it would be open to challenge even in execution proceedings being a nullity and a void decree. I accordingly, accept this revision petition, set aside the order of Sub-Judge First Class, Rajpura dated 28th September, 1991, remand the case to the Executing Court for a fresh adjudication. Executing Court will frame issues as arise on the objections filed by the judgment-debtor and give due opportunity to the parties to adduce evidence in support of their contentions and thereafter decide the matter. Parties are directed to appear before Sub-Judge Ist Class, Rajpura on 23rd September, 1992.