BANI RAM Vs. NANHU MAL

JUDGEMENT

(1.) THE question in this appeal arises in the execution of a decree of the Court of the Subordinate Judge of Aligarh, dated the 7th of May, 1875. It was on a compromise, the claim in the suit being to recover Rs. 60,000 principal and Rs. 14,715 interest. The decree was in these terms: "That a decree for a fixed sum of Rs. 78,700, as due up to the 4ih of May, 1875, be given to the Plaintiff against the two Defendants under the terms of the compromise; that this sum be paid by the Defendants in two years, with interest at 12 annas per cent, per mensem." The claim was upon a bond of the 10th of July, 1875, which stipulated for interest at 12 annas per cent. Execution proceedings appear to have been taken upon this decree, but the actual application for the execution is not on the record. It would appear, however, that some villages were sold on the 20th of December, 1877, and were purchased by the decree holder; and a petition was presented by the judgment debtors on the 20th of April, 1878, in which it was said that they were willing to pay interest according to accounts.

(2.) ON the 17th of May, 1878, they presented another petition, in which the statement was made that the decree holder should not get the interest which he then claimed, the question apparently being as to the interest beyond the two years. On the 30th of August, 1878, the question between the parties was more distinctly raised. Then, in a petition of the judgment debtors, it was stated that the Plaintiff had filed an application for execution of the decree in the sum of Rs. 38,000 on the 6th of August, 1878, "and charged interest at 12 annas per cent, after the lapse of the term of two years, contrary to the terms of the decree. Prior to this, on the 18th of July, 1878, an objection was filed regarding the same, which was rejected without due consideration. The petitioner therefore prays that an order, after inquiry, may be passed for deducting the excessive interest which the decree holder had charged contrary to the terms of the decree." On this it was ordered that the case should be brought forward for decision on the 1st of November, 1878. It appears from the list of papers that have not been forwarded with the record that the case was twice adjourned, and on the 25th of January, 1879, an order was made in these terms:--"In my opinion the objection is not tenable. The decree of the Court of the Subordinate Judge, dated the 7th of May, 1875, clearly provides that under the terms of the compromise a decree for the payment of a fixed sum of Rs. 78,800 be made in favour of the Plaintiff against both the Defendants as due up to the 4th of May, 1875, and that Defendants should pay the amount with interest, at 12 annas per cent, per mensem. Hence the plea of the Defendants cannot in any way be held to be a reasonable one." Then it states what the plea of the Defendant was:--"That if the said amount had been paid within two years the interest would have been paid to the decree holder, and that the interest on the decree money could not be recovered after the expiry of the term fixed for payment." Looking at the dates which have been given, it seems clear that this order must have been made in the execution proceedings in which the petition of the 30th August, 1878, had been presented. It is an order by the Judge deciding against the objection which had been made by the judgment debtor, that the decree money could not be recovered after the expiry of the two years. The next step appears to have been an application for the execution of this decree on the 5th of December, 1879, in which an account was made up claiming the interest at the rate of the 12 per cent. up to the time of the execution; and upon that the Judge made this order. As to the first objection,--which is stated at page 10, and which was this:"The judgment debtor has the following objections to the whole of the demand made under the decree : (1) From the date of the decree the decree holder cannot under any circumstances get more than eight annas per cent, interest on the decree money according to law, especially when the decree does not provide for any interest after two years, nor has any rate been fixed in it,"--the Judge says : "The Court is of opinion that the decree holder would get the same interest on the decretal money which has been awarded to him in the Court's decision in the regular suit. It is 12 annas per cent. In the Execution Department the Court cannot, contrary to the decision in the regular suit, reduce the rate of interest from 12 annas per cent, to 8 annas per cent, in any way. The objector's statement, that the decree does not provide any rate of interest subsequent to two years, is altogether wrong. The two years' period in the decree is for the payment of the judgment debt, not for the payment of interest at 12 annas per cent." Then comes this : "Before this also this very objection had been raised on behalf of the objector, and rejected by the Court on the 25th of January, 1879. No appeal has been preferred from that order." From that decision there was an appeal to the High Court, which says in its judgment : "It was urged before us that the decree holder is not entitled to any interest after the expiry of two years from the date of the decree; and this seems to us to be the case. The decree is for a sum of Rs. 78,700 only. The decretal order proceeds to direct that this sum shall be paid in two years, with interest at 12 annas per cent, per mensem, but there is no order as to payment of interest after two years." The High Court took no notice of the ground upon which the Subordinate Judge decided,--that the question had been concluded by his order of the 25th of January, 1879; and their Lordships think it should be remarked, in justice to the High Court, that this may be accounted for by the fact that not long before this the full Bench of that Court had held that the law, which they call the law of res judicata, was not applicable to execution proceedings. The question now for their Lordships' decision is, whether the order of the 25th of January, 1879 was not conclusive between these parties? It was an order made in the execution proceedings in this very suit; and the decision of this Board in Ram Kirpal Shukul v. Mussumat Rup Kuari Ante p. 37 is exactly in point. The only question that could be raised, and was raised by the learned Counsel for the Respondent, was that there might be some difficulty as to the construction to be put upon the words of the order of the 25th of January, 1879. But looking at the terms of that order, although it may not be so clearly expressed as it might have been, there appears to be no doubt that what was decided on that occasion was the same right to recover the interest, after the expiration of the two years which was fixed by the decree for payment, as is now put in question in the present execution proceedings. 4. Under these circumstances their Lordships will humbly advise Her Majesty that the order of the High Court be reversed; and the Respondent will pay the costs of this appeal, and also pay the costs of the proceedings in the High Court.