AI Structured Summary
Not yet generated for this judgment
Judgment
Ravi K. Deshpande, J.—The challenge in this Petition is to the order dated 15.12.2001 passed by the Executing court in Special Darkhast No. 251 of 1997. In the said Darkhast which was filed for execution of a decree passed on 2.10.1997, the Executing Court has recorded a finding that the decree has been satisfied. Hence, the original decree holder is before this Court in this Writ Petition.
The operative portion of the decree passed in Special Civil Suit
No. 470 of 1993 is reproduced as under:
Suit is decreed with costs.
The defendant do pay Rs. 60,650/- to the Plaintiff.
The defendant shall pay future interest at the rate of 18% p.a. on the amount of Rs. 40,000/- from the date of filing of the suit till its final realisation.
Decree be drawn accordingly.
The learned Counsel appearing for the Petitioner has relied upon the decision of the Apex Court in the case of M/s. Industrial Credit and Development Syndicate Now Called I.C.D.S. Ltd. Vs. Smt. Smithaben H. Patel and Others, . According to him, the law laid down therein for recording the satisfaction of the decree is that in the absence of any direction regarding adjustment and subject to the agreement to the contrary between the parties, the adjustment has to be firstly towards interest and costs and thereafter towards the principal amount. The learned Counsel appearing for the Judgment Debtor on the contrary has relied upon the law laid down by this Court in the case of Bhikalal Kalidas Mehta Vs. Preeti Sangam Sahakari Bank Ltd. . It is apparent that the principles laid down by the Apex Court and by this Court have not at all been considered. Most probably those were not brought to the notice of the Court. Hence, the trial Court is required to decide the question of applicability of the principles for adjustment of a decree by taking into consideration, the two decisions cited by the learned Counsel for the parties. The impugned order suffers from non-application of mind to the relevant aspects. The same therefore, needs to be quashed and set aside.
In the result, order dated 15.12.2001 passed by the Executing Court in Special Darkhast No. 251 of 1997 is hereby quashed and set aside. The matter is remanded back to the Executing Court. The parties are at liberty to file their statements towards the adjustment of the decree and after taking into consideration the said decisions cited by the learned Counsel, the Executing Court shall decide the matter afresh in accordance with law, without being influenced by any of the observations made on merits in the order.
Rule is made absolute in these terms. No order as to costs.