DISTRICT BOARD Vs. RAMKISHUN SINGH

JUDGEMENT

(1.) This appeal has been filed by the judgment-debtor and it is directed against the judgment of a learned single Judge of this Court, passed in Miscellaneous First Appeal No.,159 of 1961, on the 25th July, 1963. The appeal arises out of an objection to execution filed by the appellant under Section 47 of the Code of Civil Procedure. This objection had been filed in Money Execution Case No. 11 of 1960. The decreeholders had claimed in this execution case an amount of Rs. 11,863.96 paise as interest subsequent to the decree passed in favour of the decree holders and upto 27th March, 1958. The only question which arises in this appeal is whether the decree holders-respondents are entitled to obtain this interest from the judgment-debtor or not.

(2.) Some facts have to be mentioned for determination of the controversy between the parties. The respondents had obtained a decree in Money Suit No. 137/1 of 1949/51 on the 24th April, 1951. The suit had been decreed for the principal amount of Rs. 29,119 together with interest pendente lite amounting to Rs. 2,475-3-6 pies. The decree had also allowed future interest at six per cent, per annum from the date of the institution of the suit until realisation. A decree for costs had also been passed in favour of the decree holders, amounting to Rs. 3,058-7-6 pies. The decree holders levied Execution Case No. 10 of 1951 and soon thereafter, on the 23rd July, 1951, the judgment-debtor filed an appeal in this Court, which was numbered as First Appeal No. 295 of 1951. After various proceedings, which will be dealt with latter, the first appeal was dismissed by this Court on the 27th March, 1958 with costs. The costs decreed by the High Court had come to Rs. 803.74 paise. There is no dispute that the judgment-debtor has paid the two sets of costs to the decreeholders amounting to Rs. 3058-7-6 pies and Rs. 803.74 paise respectively. The decree holders received on 27th June, 1958, Rs. 32,757-12-0, three months after the decision of the first appeal of this Court. This amount had included future interest decreed by the trial court upto 19th December, 1951. In the present execution in question, the decree-holders gave an account, calculating interest from the 25th April, 1951 to 27th March, 1958 at six per cent per annum, and after allowing for the two sets of costs received by them and crediting Rs. 32,757-12-0 they have claimed the balance mentioned above.

(3.) What had happened after the institution of the first appeal in this Court by the judgment-debtor-appellant, was as follows: It obtained an order for stay of execution levied by the decree holders on the 3rd September, 1951 from the Registrar of this Court by which the judgment-debtor was asked to deposit Rs. 34,000 within six weeks. The decree holders were permitted to withdraw this amount, if they so desired, only on furnishing security to the satisfaction of the Court below. The judgment-debtor moved the Bench against the order of the Registrar, but it was unsuccessful. Six weeks from the order of the Registrar dated the 3rd September, 1951 having passed, the decree holders tried to attach certain money belonging to the judgment-debtor in the Treasury. Attachment was issued by the Court in December 1951 and 21st December, 1951 was fixed for return. On the 18th December, 1951 the judgment-debtor filed a petition in the executing court asking that it may be permitted to deposit Rs. 31,584 and odd. Order was passed by the executing court on the 20th December, 1951, by which the amount tendered by the judgment-debtor was accepted and Chalan was ordered to be passed. On the 21st December, 1951 the judgment-debtor filed a petition praying that the writ of attachment issued may be recalled and it may be permitted to deposit the amount tendered by it. To this objection was taken on behalf of the decree-holders on the ground that the judgment-debtor should have deposited the amount that it wished to deposit, within six weeks from the 3rd September, 1951. On this, order was passed on the 8th February, 1952, by which the execution was allowed to proceed. Substantially it was done of the ground that the judgment-debtor ought to have made deposit within six weeks of the order of the Registrar of this Court mentioned above. The judgment-debtor's contention was that it had six weeks' time from the final order, which order had been passed by the Bench of this Court on the 9th November, 1951, refusing to interfere with the order passed by the Registrar on the 3rd September, 1951. This argument was rejected. In the meantime, the judgment-debtor had moved this Court in the first appeal, asking for a direction on the executing court to accept the judgment-debtor's deposit. This application had failed in this Court. It appears that the judgment debtor thereafter moved this Court for putting terms upon the decree holders for withdrawing the attached money and a Bench of this Court passed an order on the 6th March, 1952, stating that the decree holders may withdraw the attached money, if they so chose, provided they furnished security to the satisfaction of the Court below. The money was ordered to remain under attachment until withdrawn on this condition. Thereafter, the attached money, amounting to Rs. 32757-12-0 was transferred to civil deposit from the Treasury, and on the 28th March, 1952, the executing court passed the following order: