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Judgment
B.N. Patnaik, J.—The decree-holder in O.S. 345/77 on the file of the Additional Sub Court, Kottayam, has preferred this revision against the order dated 21st July 1993 in E.A. 211/93 in E.P. 383/82 arising out of the said suit. By the impugned order, the learned Sub Judge allowed the petition of the judgment-debtor to get refund of an excess amount of Rs. 28,089.90 which was said to have been deposited in excess of the decretal debt due to the Petitioner-decree-holder.
The Petitioner filed the suit for recovery of an amount of Rs. 75,645.20 with interest from the date of the suit. The suit was decreed for a sum of Rs. 82,354.15. The decree-holder levied execution to execute the decree. While the execution proceeding was pending, the High Court by judgment, dated 2nd June 1989 in A.S. 396/81 modified the decree and allowed the Petitioner-decree-holder to recover only an amount of Rs. 55,645.20 with interest at 6 percent per annum from the date of filing the suit (29th July 1977).The trial Court, while granting the decree had directed that the amount of Rs. 18,305.84 deposited by the Respondent herein on 2nd February 1978 Will be credited in the decree as having been paid on 2nd February 1978. In pursuance of that order, an amount of Rs. 77,594.01 was claimed in the execution proceeding. In that execution proceeding an order for attachment of movables belonging to the Respondent judgment-debtor was passed. When the Amin went to effect attachment, the judgment-debtor paid an amount of Rs. 78,445.70 to the Amin, who deposited the same in Court on 30th November 1982. Thereafter, the High Court allowed the Petitioner-decree-holder to withdraw the amount on the condition of furnishing security to the satisfaction of the execution Court. The Petitioner did not draw that amount in view of the conditional order of the appellate Court. The appeal was finally disposed of on 2nd June 1989.
The judgment-debtor Respondent filed a petition before the execution Court stating that he is entitled to get refund of an amount of Rs. 28,089.90, since the deposits made by him on 2nd February 1978 and 30th November 1982 are in excess of the decretal dues. The Petitioner-decree-holder contended that the decretal amount and interest thereon would be Rs. 1,08,020. The judgment-debtor has deposited only an amount of Rs. 96,761.54. In the statement filed by the judgment-debtor Respondent deduction of the first deposit of Rs. 18,305.84 was made from the total amount due as on 2nd February 1978. He stated that he made the deduction from the total amount of the principal, interest, execution expenses and advocate fee as on 2nd June 1989.
The execution Court held that if the deposit made on 2nd February 1978 is deducted from the total amount due on that date, the statement of account filed by the judgment-debtor is correct. The total amount due to the decree-holder as on 30th November 1982 on which date the judgment-debtor made the second deposit of Rs. 78,455.70 was completely satisfied and as such there is an excess amount of Rs. 28,089.90. With the above finding, the execution Court directed for refund of the amount.
It is contended by the learned Counsel for the Petitioner that the Court below erred in restricting the payment of interest from 30th November 1982 when the said amount was deposited. Since the Petitioner was not allowed to withdraw the amount unconditionally, it was not deposited in terms of Order 21, Rule 1(a) of the Code of Civil Procedure, for short, the CPC Hence the decree- holder is entitled to get interest on the decretal dues less the amount paid on 2nd February 1978 upto the date of judgment in A.S. 396/81.
Learned Counsel for the Respondent contends that the Petitioner was at liberty to withdraw the amount deposited on 30th November 1982 on that day, as it was deemed to have been done under Order 21, Rule 1(a) of the CPC He is not entitled to claim interest on the decretal dues from 30th November 1982. Hence it is contended that the execution Court is justified in accepting the statement of account filed by the Respondent-judgment-debtor in which no interest was calculated with effect from 30th November 1982 and directing the refund of the excess amount.
The only question for consideration is whether the amount that was deposited in the Court on 30th November 1982 is deemed to be a deposit under Order 21, Rule 1(a) CPC Clause (a) of Sub-rule (1) of Rule 1 of Order 21 CPC lays down that all money, payable under a decree shall be paid by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank. Sub-rule (2) lays down that where any payment is made under Clause (a) or Clause (c) of Sub-rule (1), the judgment debtor shall give notice thereof to the decree-holder either through the Court or directly to him by registered post, acknowledgment due. Sub-rule (4) contemplates that on any amount paid under Clause (a) or Clause (c) of Sub-rule (1), interest, if any, shall cease to run from the date of service of the notice referred to in Sub-rule (2). The question as to whether the order of the appellate Court directing payment to the decree-holder subject to his complying a condition can be said to be a deposit under Clause (a) of Sub-rule (1) of Rule (1) of Order 21 CPC came up for consideration before the Supreme Court in P.S.L. Ramanathan Chettiar and Others Vs. O. Rm. P. Rm. Ramanathan Chettiar, . It has been laid down therein as follows:
The fact of a judgment-debtor''s depositing a sum in Court to purchase peace by way of stay of execution of the decree on terms that the decree-holder can draw it out on furnishing security, does not pass title to the money to the decree-holder. He can if he likes take the money out in terms of the order but so long as he does not do it, there is nothing to prevent the judgment-debtor from taking it out by furnishing other security, say, of immovable property, if the Court allows him to do so and his losing the appeal putting the decretal amount in Court in terms of Order 21, Rule 1, CPC in satisfaction of the decree. The real effect of deposit of money in Court is to put the money beyond the reach of the parties pending the disposal of the appeal. The decree holder can only take it out on furnishing security which means that the payment is not in satisfaction of the decree and security could be proceeded against by the judgment-debtor in case of his success in the appeal. Pending the determination of the same, it is beyond the reach of the judgment-debtor. Such a deposit would not amount to discharge of decree.
Earlier, a Full Bench of the Madras High Court in O. RM. P. RM. Ramanathan Chettiar Vs. P.S.L. Ramanathan Chettiar and Others, laid down the same proposition of law as follows:
The payments under Order 21, Rule 1 are payments which should be unconditional in their nature. Where money is deposited under an order of Court, the terms of the deposit would be governed by the order. When the money was deposited in pursuance of an order which placed a restriction on the decree-holder drawing the money that could not be held to be a deposit under Order 21 Rule 1 but one under the order of Court.
Of course, on some other grounds, the Madras decision was overruled by the Supreme Court later in P.S.L. Ramanathan Chettiar and Others Vs. O. Rm. P. Rm. Ramanathan Chettiar, . But, that part of the observation of the Madras High Court was not set aside. Similarly, in Union of India (UOI) Vs. Smt. Sheela Devi and Another, the High Court of Punjab held as follows:
The Union of India filed an appeal against the decision of the arbitrator awarding compensation with interest to the land owner whose land was acquired. Pending the appeal the Appellant made an application for the stay of the execution proceedings filed by the Respondent-owner. On this application the appellate Court passed an order that the decretal amount will only be paid to the decree-holder on her furnishing security to the satisfaction of the executing Court for restitution. The Appellant deposited the dccretal amount in the treasury, but the same was paid to the decree-holder one month after the said deposit when she furnished the required security. On the decree-holder claiming interest, the question was whether the decree- holder was entitled to the interest for the period of one month from the date of the deposit of the decretal amount in the treasury till its actual withdrawal by her on furnishing security.
Held that as the condition was imposed by the Court on the application of the Appellant the decree-holder was entitled to interest from the date of deposit to the date of actual payment.
The decree-holder in this case was not at liberty to withdraw the amount deposited on 30th November 1982 inasmuch as it was a conditional order passed by the Court. As has been held by the Supreme Court, since he was not entitled to withdraw that amount in satisfaction of the decree, the said deposit is not deemed to be one made under Clause (a) of Sub-rule (1) of Rule 1 of Order 21 of the CPC Hence the provisions of Sub-rule (4) shall not apply insofar as that deposit is concerned. In this view of the matter, I am of the opinion that the decree-holder is entitled to get interest at the rate of 6 percent per annum on the balance amount of the decretal dues from 2nd February 1978 till 2nd June 1989.
The contention of the learned Counsel for the Petitioner that the Petitioner is entitled to get interest at that rate on the said amount even after 2nd June 1989 upto the date of filing the revision petition, in my opinion, does not appear to be sound. The decree-holder Petitioner was free to withdraw the amount at any time after 2nd June 1989. It is true that the judgment-debtor filed a petition about one year thereafter for disbursement of the excess amount said to have been deposited by him. But, that cannot be a ground to say that the decree-holder was prevented from withdrawing the amount after 2nd June 1989 and before the judgment-debtor filed the petition.
For the reasons stated above, the revision is allowed. The impugned order is set aside. Parties are directed to submit fresh statements of account before the execution Court in the light of the observation made above, and the execution Court shall pass appropriate orders on a scrutiny of the statements of account to be furnished by the parties.