MOULVI MAHTO Vs. DWARKA MAHTO

JUDGEMENT

(1.) This application has been filed by the defendants judgment-debtors and it is directed against an order dated the 22nd December, 1962, passed in Execution Case No. 399 of 1958, by which the court below has ordered that the decree-holder is entitled to realise interest upto the date of the impugned order. The facts, on which this application arises, are, shortly speaking, these: Certain properties of the Judgment-debtors were going to be put up on sale, and in order to stay the sale, the judgment-debtors had deposited Rs. 5,440.21 paise on the 25th January, 1961. In the meantime, the judgment-debtors had filed a second appeal in this Court, numbered as Second Appeal No. 1431 of 1958 against the decree passed for mesne profits in Title Suit No. 140 of 1944. In that second appeal, a cross-objection had also been filed and on the 14th November, 1961, the appeal and the cross-objection were decided on compromise. The terms of compromise were as follows: (a) That the claim of mesne profits shall stand decreed for four years in suit at the rate of Rs. 550/-per year along with interest at the rate of Rs. 6/-per cent per annum which is to be calculated from the end of each year in suit till the date of realization. (b) That the respondent (opposite party) shall be entitled to withdraw the amount as decreed by this Court out of the deposit already made in the court below by the appellants (petitioners) and the appellants will make no objection as against that. As the decree-holder was entitled to withdraw the amount decreed on compromise, he filed his application for withdrawal on the 7th June, 1962. The judgment-debtors put in an objection on the 27th June, 1962, maintaining that the decree-holder was entitled only to Rs. 4,157.53 paise. According to the judgment-debtors, the balance amounting to Rupees 1,282.68 paise should be refunded to the judgment-debtors from the deposit of Rs. 5,440.21 paise made on the 25th January, 1961. A question was agitated before the court below as to the date upto which the decree-holder was entitled to get interest according to the compromise decree of this Court. The learned Munsif has held that the decree-holder was prevented from withdrawing the amount deposited on the 25th January, 1961, upon the judgment-debtors' objection filed on the 27th June, 1962, and, therefore, the decree-holder is entitled to realise interest upto the 22nd December, 1962.

(2.) Having heard teamed counsel for the parties, it appears to me that the learned Munsif has not applied his mind to the real question in controversy, arising from the circumstances of this case. Although it was mentioned in the compromise decree of this Court that the interest was to be calculated till the date of realisation, an amount of Rs. 5,440.21 paise had been deposited before the date of the compromise decree of this Court, that is to say, on the 25th January, 1961. If on a proper calculation, the decree-holder is found not entitled to realise more than Rs. 5,440.21 paise, including principal and interest, upto the 14th November, 1961, then the decree-holder is not entitled to any interest at all after the 14th November, 1961. If the dues of the decree-holder amount to more than Rs. 5,440.21 paise upto the 14th November, 1961, then interest must run on the excess amount due, over and above Rs. 5,440.21 paise, at the rate of 6 per cent. per annum until realisation. As indicated earlier, the objection of the judgment-debtors made on the 27th June, 1962 was that the decree-holder was entitled to Rs. 4,157.53 paise only. If this contention is incorrect and the decree-holder is entitled to receive more than this amount as principal and interest upto the 14th November, 1961, the Court below must calculate what amount is due to the decree-holder as principal and interest upto the 14th November, 1961. If the court on a reconsideration, finds that the total due of the decree-holder is Rs. 5,440.21 paise or less upto the 14th November, 1961, then the decree-holder can realise only the amount due, without any interest running on it after the 14th November, 1961. If the dues of the decree-holder amount to more than Rs. 5,440.21 paise, then the decree-holder will be entitled to withdraw the amount deposited on the 25th January, 1961, and claim the balance and interest at the rate of 6 per cent. per annum on the balance running from the 14th November 1961 until realisation. Whatever amount is decided by the Court in favour of the decree-holder, he will be entitled to withdraw it from the deposit made on the 25th January, 1961, if it amounts to Rupees 5,440.21 paise or less. If the decree-holder's dues are less than the amount deposited, the judgment-debtors should receive back the excess.

(3.) The application is, therefore, allowed, the order dated the 22nd December, 1962, is set aside and the matter is remitted to the executing court for re-consideration.