Ram Chand vs Hardwari Lall

S.K. Kapur, J.—This Execution First Appeal is directed against the order of Shri Jaswant Singh, Subordinate Judge 1st Class, Delhi, dated December 2, 1961. On 8th January, 1953, Mst. Dhano Devi filed a suit for the recovery of Rs. 9920 by sale of mortgage property. This amount included Rs. 8000 as principal and interest at the rate of 12% per annum from 22nd December, 1950 to 21st December, 1952. On 22nd February, 1954, there was a compromise-between the parties and they accordingly made an application for recording of the same. On the basis of the compromise, the statement of the parties was recorded and an order, dated 22nd February, 1954, was passed recording the compromise. The first paragraph of the decree is in following terms:

This suit coming on this day for final disposal before me Shri N. R. Sharma, Sub Judge 1st Class, Delhi in the presence of Shri Laxmi Narain Advocate counsel for the plaintiff and Shri Kewal Krishan Advocate counsel for the defendant, It is hereby declared that the amount due to the plaintiff on account of principal Rs. 8000/- interest and costs calculated upto the 22nd day of February 1954, is Rs. 9920 and that such amount shall carry interest at the rate of six per cent per annum until realization and it is decreed as follows....

Since the decree clearly provided that Rs. 9920 included principal, interest and costs calculated up to the 22nd day of February, 1954, the decree-holder, on 28-7-1961 made an application for amendment of the decree. In the application the claim was that the decree should be amended so as to provide that the decree-holder shall be entitled to Rs. 9920 plus interest from the date of institution of the suit up to the date of realization. This application for amendment was disposed of by a very brief order on 1-8-1961. In the said order, the learned Subordinate Judge merely said that the decree be amended and brought in conformity with the judgment. No details were given in the order, as to how the decree was not in conformity with the judgment and what were the amendments to be made therein. This order was passed by S. Joginder Singh. There is another order dated 1st August, 1961, in the execution file by the same learned Subordinate Judge, which is again very brief. By this order the learned Subordinate Judge directed that Rs. 13,500 which have been deposited be paid to the decree-holder and for the balance the matter should be placed before him on 26th August, 1961, after amending or correcting the decree. On 26th August, 1961, Ram Chand the judgment-debtor filed an application for the return of certain original documents. In the said application it was inter alia stated that (a) the judgment-debtor had paid Rs. 13500/- the decretal amount to the decree-holder and nothing more remained due and (b) ''''That on the application of the decree-holder of which no copy has been furnished to this judgment-debtor, this Hon''ble Court is going to amend the decree sheet."

The amended decree shows that a sum of Rs. 12250/12 annas is due to the decree-holder on account of principal, costs and interest calculated upto 22nd February, 1954 instead of Rs. 9920/- It is stated that the decree was amended vide order dated 1st August, 1961.

It is also relevant to set out the circumstances in which S. Joginder Singh, Subordinate Judge passed the order amending the decree, because one of the points raised by the learned counsel for the appellant is that only execution file had been transferred to S. Joginder Singh and he had, therefore, no jurisdiction to amend the decree. Execution application dated 18th April, 1960, was filed in the Court which passed the decree. The successor of the learned Subordinate Judge passing the decree was not competent to deal with the matter in view of the pecuniary limits of his jurisdiction. He, therefore, passed an order on 26th April 1964, that he was not competent to deal with the execution application and the same should be forwarded to the learned District Judge for proper orders. On the same day the learned District Judge passed the following order :

"Send it to the Court of Shri Joginder Singh S. J. Delhi for disposal." From the above facts it follows that (a) only the execution application was forwarded to S. Joginder Singh and (b) S. Joginder Singh was not the successor of the Court that passed the decree. The judgement-debtor had paid Rs. 1350/- to the decree-holder on 22nd July, 1961. Thereafter warrants were issued for the realisation of a further sum of Rs. 2100/-. The judgment-debtor paid Rs. 2108-50 nP. including expenses of sale to the auctioneer on the spot. The judgment-debtor claimed the said amount of Rs. 2100/- on account of alleged excess payment made by him. The trial Court by its order dated 2nd December, 1961, held that the decree-holder is entitled to Rs 2022/- out of Rs 2100/- paid by the judgment-debtor and the balance of Rs. 78/- is to be returned to him. This order is the subject matter of the present appeal.

Mr. Yogeshwar Dayal for appellant has raised the following contentions:

(1) The amendment in the decree having been made by the court to which only the execution application had been transferred by the District Judge, is of no effect and the amended decree is a nullity.

(2) The amended decree being a nullity can be challenged by him, in any proceedings and whenever the same is sought to be used against him.

(3) That on the proper construction of the order recording compromise and the unamended decree the appellant is entitled to the refund claimed.

(4) The decree was amended without any notice to the appellant and should be ignored for this reason also.

Mr. Tara Chand Brij Mohan Lal, the learned counsel for the respondent, submits that:

(a) It is not open to the appellant to challenge the amendment in the decree at this stage, particularly when he had notice of the amendment and had ample opportunity to challenge it earlier by appropriate proceedings.

(b) Under the amended decree the appellant is not entitled to the relief claimed.

(c) The court amending the decree had jurisdiction to do so.

(d) On the correct reading of even the unamended decree the appellant is not entitled to succeed.

I would first deal with the amendment in the decree. From the facts stated above it is clear that the learned District Judge transferred only the execution application to Shri Joginder Singh, Subordinate Judge. The report on the basis of which the matter went to the learned District Judge was that the successor of the trial Judge passing the decree had no jurisdiction to deal with the execution application. On this the learned District Judge directed the same to be sent to Shri Joginder Singh. In these circumstances Shri Joginder Singh had no jurisdiction to amend the decree. Mr. Tara Chand Brij Mohan Lal made a faint effort to suggest that Shri Joginder Singh may have been the successor of the Judge passing the decree. The circumstances set out above do not, however, support the submission but on the other hand clearly show that he was not. It is no doubt true that the successor of the Court that passed the decree could amend the decree. Even another Judge to whom the entire matter was transferred could order such an amendment. But the court to which only the execution application was transferred could not amend the decree. The amended decree would in such circumstances, be a complete nullity and in my opinion the learned counsel for the appellant is right that he can challenge it before, me in this appeal. In these circumstances, it is not necessary to go into the question, whether the amendment was after notice to the appellant or not.

Regarding the construction of the unamended decree, the learned counsel for the appellant appears to be right. The decree clearly states that the amount due to the plaintiff on account of principal is Rs. 8000/ and the total amount due inclusive of costs and interest upto February 22, 1954, comes to Rs. 9920/-. As a matter of fact if the decree did not bear that interpretation, the application on behalf of respondent for amendment of the decree would not have been made. It is contended on behalf of the respondent that the compromise application, statement of the parties and the order recording compromise all lead to the conclusion that construction sought to be placed on behalf of the appellant is not correct. I doubt whether it is open to me to look at any other document except possibly the judgment for the construction of the decree Reference may be made to AIR 1944 46 (Privy Council) . As I have already said the construction of the decree is clear. The order recording compromise, leads further support to the appellant. The learned counsel for the respondent submits that by the said order a decree was granted for Rs. 9920/- besides interest and costs. Says the learned counsel, if that were not so, there was no point in mentioning the rate of interest payable till the date of decree besides future interest. In my opinion there is no force in this argument. If the learned counsel for the respondent were right the order would have been that a decree is granted for Rs. 8000/- plus interest at the rate of 12 per cent per annum till date i.e., 22nd February, 1954. Rs. 9920/- included interest till the date of the suit. There was, therefore, no point in granting a decree for Rs. 9920/- plus interest at the rate of 12 per cent per annum till 22hd February, 1954. Surely interest till the date of suit was not to be paid twice over.

In the result the appellant succeeds. Excluding the amount paid by the judgment-debtor towards expenses for sale, to the auctioner, he paid Rs. 13500/- on 22nd July, 1961, and Rs. 2100/- on 17th October, 1961, that is a total amount of Rs. 15600 . On the other hand his liability was to pay Rs. 3560/- on account of interest and Rs. 9920/- on account of principal and interest upto 22nd February, 1954, that is the total of Rs. 13480/- To this a sum of Rs. 51/4- is to be added being the amount of costs of two execution applications bringing the total to Rs. 13531/4-. The appellant will thus be entitled to refund of Rs. 2068/75 Paise. I order accordingly. There will, however, be no order as to costs.