NARESH CHANDRA BOSE Vs. KRISHNA BHABINI DASI

JUDGEMENT

(1.) This appeal by the judgment debtor is directed against an order of the lower Court, dated the 2 March, 1923. The decree-holder obtained a decree in respect of maintenance due to her from the estate of the judgment-debtor's father. The decree was for a certain sum but there was no mention in it that the plaintiff was entitled to interest on the sum decreed. The lower Court on the application of the decree-holder allowed her interest at the rate of 6 per cent. per annum on the arrears from the time they fell due and has also directed the maintenance to be calculated from the 1 Chaitra 1322. The maintenance was fixed at Rs. 275 a month. The judgment debtor had already before suit paid Rs. 200 on account of the month of Chaitra. The execution, therefore, related to Rs. 75 for that month. The appellant contends that the order of the lower Court allowing interest on the decretal amount and allowing maintenance from the beginning of the month of Chaitra is bad in law.

(2.) With regard to the first point, it is hardly necessary to examine the law on the point as it has been settled by their Lordships of the Privy Council in the case of Seth Gokul Dass Gopal Dass V/s. Murli 3 C. 602 : 5 I.A. 78 : 2 C.L.R. 156 : 3 Suth.P.C.J. 514 : 3 Sar. P.C.J. 802 : 2 Ind. Jur. 329 : 1 Ind. Dec. (N.S.) 967 (P.C.). There their Lordships have said that where a decree is silent as to future interest, interest cannot be recovered by proceedings in execution of the decree, but it may be recovered as damages by a separate suit It cannot be disputed that an Execution Court is not entitled to go behind the decree and to vary it in execution proceedings. The right of a person standing in the position of the decree-holder to recover damages on account of detention of the money to which he is entitled is fully discussed in the case of Mohamaya Prosad Singh V/s. Ram Khelawan Singh Thakur 15 Ind. Cas. 911 : 15 C.L.J. 684. Mookerjee, J., following certain decision of the Judicial Committee has held that where a certain sum of money is due to the plaintiff by way of malikana he is not entitled to claim interest but is entitled to claim damages in lieu of interest. The question arose in a suit. The plaintiff claimed interest. on the principal money due to him as malikana. If a plaintiff is not entitled to claim interest on the sum due to him under claim similar to the decree-holder's claim even in a suit, it cannot be maintained that he is entitled to claim interest in execution proceedings. The decree holder must pursue the proper remedy which is by bringing a suit for damages for detention of the decretal amount. This question must, therefore, be decided in favour of the appellant.

(3.) The next objection to the order of the Court below is that the decree-holder is not entitled to maintenance from the month of Chaitra. It appears from an examination of the record that the husband of the decree-holder died some time on the 28 Chaitra 1316, and presumably she is entitled to maintenance from the date of his death month by month. In the decree pissed the plaintiff claimed maintenance for the period before suit as well as for future maintenance. The decree disallowed the plaintiff's prayer for maintenance before suit and granted her a decree for future maintenance at the rate of Rs. 275 a month. The suit was instituted on the 10 April 1916 (28 Chaitra 1322). According to the reading of the decree the plaintiff is entitled to maintenance from the date of the institution of the suit, namely, the 28 Chaitra 1322. She is accordingly entitled to maintenance for three days of Chaitra which will come to about Rs. 10. The order of the lower Court will, therefore, have to be modified. The decree-holder's claim for interest is disallowed and she will get her maintenance from the 28 Chaitra which we assess at Rs. 10. The appeal is accordingly allowed with costs which we assess at two gold mohurs.