JADAB KRISHNA KUNDU Vs. APSARADDIN SARDAR

JUDGEMENT

(1.) Reliance has been placed upon rule 82, Order 21, Civil Procedure Code and it is urged that the sale alone should have been set aside, there should have been no order as to satisfaction of the decree. I see no substances in this argument.

(2.) It appears from the record of the case that the judgment-debtor applied to have the sale set aside and the decree satisfied by deposit of money. The decree-holder contended that interest was not mentioned in the application for execution by mistake; accordingly he prayed that besides the sum of Rs. 410 which was the principal amount of the decree, Rs. 446-11 due as interest should be ordered to be deposited. Certainly this question is maintainable under Section 47, Civil Procedure Code. The Court decided that the decree holder was not entitled to get interest and passed an order of satisfaction of the decree. Whenever an execution case is disposed of, the Court is to note whether the decree is satisfied in full or in part. There is nothing on the record to show that the decree bore any interest. No. copy of the decree is on the record. In column 7 no interest was mentioned though required under Order 21, rule 11, clause (g). It appears that the word (interest) was written at first but it was penned through and initial was put down against the penned-through line. It is also admitted that in the previous execution oases in respect of this decree, never interest was claimed or mentioned. All these clearly indicate that either the decree did not provide interest or the decree-holder waived his right to take interest. Its is admitted that the decree-holder obtained an instalment decree, but his pleader urges that interest at Re. 1 per cent per month has to run in case of default. There was no such note in the application for execution, no decree has been filed to show that interest was allowed. In these circumstances I think that the learned Munsiff was quite justified in holding that the decree-holder was not entitled to get interest and in noting down that the decree was satisfied.

(3.) In the last column of the application for execution the decree-holder prayed to realise the decretal amount by the sale of the property mentioned in the schedule. Rs. 410 is mentioned in column 7 as the decretal amount. There is no mention of interest. This amount and costs were entered in the Istahar. The defendant paid the said sums and compensation. So how it may be said that the decree has not been satisfied?