Mangal Pathak and Others vs Mesar Singh and Others

Mullick, J.—The paper-book in this case does not contain the necessary papers and we have been considerably inconvenienced by the omission of the appellants in this respect.

On reference to the original records we find that on the 27th February, 1917 a decree was made in favour of the appellants for Rs. 2,715-6-0 damages and Rs. 1,647-12-4 on account of costs. Although it is now contended that the decree allowed interest both on principal and costs, it is quite clear on a reference to the decree that the direction of the Court was that interest was to be paid only upon costs. Then the defendants appealed against the decree. While the appeal was pending, the decree-holders proceeded to execute and the judgment-debtors filed an application before the appeal Court asking for stay of execution and agreed, it is alleged by the appellants, to pay not only the amount of damages due up to that date but also interest and thereby to modify the original decree. The appeal Court allowed stay upon the judgment-debtor''s executing the necessary security bond and paying Rs. 1,699-2-6 in cash. The security bond in its earlier portion states that they were liable to pay interest both upon the principal sum and the costs, but in the concluding portion it is stated that the security is being given for Rs. 2,854-11-3 on account of the mesne profits only.

However that may be, it is contended now before us that there was a clear admission in the security bond that the judgment-debtors were liable to pay interest upon the principal money. The appeal Court finally dismissed the appeal, and the question now is whether in the execution, which is now proceeding, the decree-holders are entitled to interest not only upon the costs but also upon the principal. The Subordinate Judge has held that upon a construction of the decree, the claim of the decree-holders is not tenable and the present appeal is filed against his order.

It is quite clear that there was no specific agreement in the security bond to pay interest upon the principal, nor is there any recital of the rate of interest so that on that ground alone this appeal must fail. But even if it were admitted that there was an agreement to pay interest at the rate of 6 per cent. the question is whether that agreement can be enforced in execution of the decree.

Reliance is placed upon Sreeshteedhur Saha v. Woomeshnath Roy 5 WR Mis 1 and Lakshmana v. Sukiya Bai (1884) 7 Mad. 400. In both these cases an application was made by the judgment-debtor at the execution stage for the stay of the sale and in the presence of the Court the judgment-debtor agreed to pay interest upon the decretal sum. It was held that the Court''s order allowing the prayer was in effect an amendment of the decree by consent and was operative. But in the present case the difficulty is that the agreement, if any, to pay interest was made not in the execution Court but in the appeal Court, and that, notwithstanding any arrangement that may have been arrived at between the parties with the consent of the Court, the Court eventually by dismissing the appeal before it affirmed the original decree; and therefore the decree that now stands between the parties is not the decree amended by the alleged consent but the original decree in which no provision is made for the payment of interest upon the principal.

In these circumstances the Subordinate Judge was right and the appeal must be dismissed with costs.

Kulwant Sahay, J.

I agree.