NARAYANA PATTER Vs. GOPALAKRISHNA PATTER

JUDGEMENT

(1.) A decree which had been obtained against the appellant by the respondents was reversed and the former became entitled to restitution of the money which had been collected from him under the decree so reversed. He applied to the Subordinate Court for restitution of the amount, claiming interest thereon at 12 per cent, per annum. Notice of the application was given to the respondents but it did not specify that the application was for restitution or contain any intimation of the claim for interest. The respondents not having appeared on the day they were required to attend, the Subordinate Judge ordered execution by way of arrest, but process fee nod having been paid no further action was taken. The appellant, however, moved the Court again in the matter and the respondents then appeared and objected to the grant of interest at 12 per cent. The Subordinate Judge however decided the matter in favour of the appellant hold- ing that the rate claimed was proper. On appeal the District Judge reduced the interest to 6 per cent.

(2.) We are unable to accept the contention on behalf of the appellant that the appeal to the District Judge was premature. Unlike as was apparently taken to be the case with the finding in Venkatagiri Aiyar V/s. Sadagopachariar 14 M.L.J.E. 359 to which our attention was drawn, the decision of the Subordinate Judge as to interest was not a conclusion as to part of a matter arising between the parties before him intended to be embodied in an order dealing with the whole matter and to be passed later on. It was a final determination so far as the Judge was concerned of the only dispute between the parties that had to be decided and was, therefore, appealable.

(3.) Nor can we agree with the contention that the respondents were precluded from raising the question as to interest at the time they did. Though the appellant had made a claim at 12 per cent in the original application for execution and an order was passed thereon after notice to the respondents, the notice was not such as to warrant the view that the order for arrest operated as res judicata in the matter. The appellant's application was not for the execution of something which had been directed to be done by any decree or order so as ipso facto to convey information to the respondents as to what the claim made and the relief prayed for were bat in regard to a matter of which, so far as the question of interest at least was concerned, they could not, without being expressly appraised, have become aware of. Consequently the notice issued to them, such as it was, was insufficient to fix them with the knowledge of the claim for interest and thereby bar them from raising any controversy in the matter on their failing to appear on the date fixed. See Sheik Budan V/s. Bamachandra Bhungayya I.L.R., 11B. p. 537 and C.M.A. No. 25 of 1903.