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Judgment
Hon''ble Mr. Madhava Rao
This revision is filed against the order of the 2nd Additional Judge, City Civil Court, Hyderabad, dismissing I. A. No. 32 of 1972, a petition filed for amendment of the judgment and decree dated 29-6-1971 passed in O. S. 285 of 1969. The petitioner (Plaintiff) filed a suit with a prayer to pass a personal decree in favour of the plaintiff (Bank) against defendants 2 to 5 and against the assets of defendant No. 1 for Rs. 14, 483. 68 ps. together with interest thereon at the contract rate, from the date of the plaint to the date of, realisation and for costs. It was also prayed that a preliminary mortgage decree may be passed against defendents 1, 2 to 12 for a sum of Rs.14.486. 68 (the aggregate outstanding in the clean overdraft and the cash credit pledge accounts) in terms of order 34, Rule 4 CPC read with Order 34, Rule 2 (e) (f) (c) (i) of sub-rule (1) thereof, etc.
Defendants 1 to 3, 8, 9, 11 and 12 filed written statement and mainly alleged that the plaintiff did not extend the clean overdraft and cash credit pledge facilities to these defendants. They also made some other allegations which are not necessary for the purpose of this revision.
The lower court framed the following issues :
Did the plaintiff stop the facilities to the defendants wrongfully without any valid reasons ?
Whether the bank has right to terminate the facilities unilaterally ?
Whether the amount claimed is true ?
Whether the plaintiff is entitled to costs and interest ?
To what relief ?
Issued 1 to 3 were found by the lower court in favour of the plaintiff. On issue No. 4, it passed the following order :--
It is represented on behalf of the defendants that they may not be mulcted with the full costs of the suit. The counsel for the plaintiff represents at least the defendants must be directed to pay full costs regarding the court fee which has been paid by the plaintiffs. As regards the other costs, the counsel for the plaintiff leaves the matter to the discretion of the court. In view of the representation made by the counsel for the plaintiff and the defendants, I hold that the defendants shall pay court fees to the plaintiff and as regards the advocates fee etc. each party shall bear half of the costs. I find this issue accordingly.
Under issue No. 5, the lower court observed :
In that result, a preliminary mortgage decree is passed against D. 1 to D. 5 and against mortgage property for Rs. 14,483.68. The defendants are permitted to pay the decretal amount in monthly instalments of Rs. 400/- commencing from 10-8-1971. In case of any three defaults in payment, the balance shall be recoverable in lumpsum. As regards the costs, the defendants shall pay full court fees to the plaintiff and as regards the advocates fee etc. each party shall bear half the costs. Suit decreed accordingly.
A preliminary decree was framed on the basis of the above judgment. The preliminary decree is as under :
That a preliminary mortgage decree is hereby passed against the defendant No. 1, 2 to 5 and against the mortgage property house bearing No. 1447 Jangam Bazar, Secunderabad for Rs. 14,483.68 ps.
That the defendants are permitted to pay the decretal amount in monthly instalment of Rs. 500/- commencing from 10-8-1971. In case of any three defaults in payments the balance of decretal amount shall be recoverable from the defendants in lumpsum.
That the defendant pay to the plaintiff a sum of Rs. 1, 107-30 ps. towards court fee paid on the plaint and a sum of Rs. 336-32 ps. towards half costs of the suit. Given under my hand and seal of the court this the 29th day of June, 1971.
After this preliminary mortgage decree was passed, the plaintiff filed a petition u/s 152 C. P. C. to amend the judgment and decree dated 29-6-1971 in O. S No. 285 of 1969; and to direct for payment of interest. In paragraph 3 of the affidavit filed in support of this petition, it is stated that issue No. 4 is framed in the following words :
Whether the plaintiff is entitled to costs and interest ?
The said issue was answered in favour of the plaintiff Notwithstanding the same, no provision has been made for payment of future interest. Under the circumstances, the plaintiff wanted the lower court to amend the judgment and decree, providing for payment of interest.
A verified counter was filed by the respondents wherein it is stated that the decree passed in the above case is a consent decree, and on the basis of the compromise, the said decree was passed, and the same cannot now be amended to include some more reliefs, as is now sought by the petitioner. The amendment of the judgment sought by the petitioner cannot be allowed. There is no provision for the amendment of the judgment unless it is by review, or other modes known to law. The petition filed by the petitioner is, therefore, not maintainable under law, and is liable to be dismissed.
The lower court passed a very short order on 20-7-1972 on this petition, which is as under.
Counter filed, Heard both the Advocates. The decree passed is a consent decree admittedly, and so there cannot be any amendment for it. Moreover, unless ordered in revision petition amendment of the judgment also cannot be permitted, and so the petition is not maintainable. The petition is dismissed.
The present revision is filed against this order.
No body appeared for the respondents.
The learned counsel for the petitioner contended that it is not correct to say that the decree is admittedly a consent decree, and that a revision was necessary to get the judgment amended. In fact, it is a petition to amend the judgment and decree both. As a matter of fact, the very order passed under issue No. 4 indicates that the request for payment of interest as made in the plaint must be deemed to have been granted by the lower court.
The learned counsel for the petitioner has taken me through the judgment of the lower court. It is quite evident from it that it is not a decree passed on the basis of the consent of the parties. All the issues have been decided by the lower court on their merits, except issue No. 4. Under issue No. 4, the only point urged by the counsel for the defendants was with regard to the payment of costs. The question of interest was not raised ; nor the lower court, refused to grant interest. When the defendant''s counsel bargained for reducing the payment of costs, the counsel for the plaintiff represented that the defendants may be directed to pay the entire court fee, but with regard to other costs, the learned counsel left it to the discretion of the court. Therefore, the lower court directed payment of the entire court fee, but reduced the costs and directed to pay only half of the costs including advocate''s fee, and finally it stated: "I find this issue accordingly". No doubt, there is no express order passed by the court below with regard to the payment of interest, but, at the same time, it is no where suggested or whispered in the arguments of the learned counsel for the defendants that they were not prepared to pay interest as claimed by the plaintiff. In the absence of any express mention about the payment of interest in the judgment by the lower court nor refusal to allow interest, on the basis of its clear finding that "I find this issue accordingly", it can be read only as if issue No. 4 as framed by the lower court is decided in favour of the plaintiff with the modification that full court fee and half of the costs will be paid, and also the interests. Issue No. 1 specially mentions two matters-one with regard to interest--and another with regard to costs. The bargain was only with regard to costs and not interest Therefore, the judgment of the lower court has to be read in the manner indicated above only, otherwise, it will give no meaning to the decision of the lower court on issue No. 4. Therefore, it will be deemed that the lower court granted interest to the plaintiff.
The learned counsel for the petitioner further contends that when issue No. 4 to the extent of the modification indicated above, is decided in favour of the plaintiff, the lower court, while framing the decree, ought to have kept the provisions of Order 34, Rule 11 CPC. in view, and should have made provision for interest in it. Therefore, the decree framed by the lower court is not in conformity with the judgment Hence, the petitioner was justified in filing the petition for amendment of the decree also
The petitioner has of course asked for amendment of the judgment and decree. In view of the above discussion the judgment does not require to be amended. A decree has to be framed in conformity with the judgment.
It is already held that the decision on issue No. 4 accordingly means that it is being decided in favour of the plaintiff with said modification only by the lower court. Even that modification, as is evident, was not done on the basis of any consent of parties, but it was left to the discretion of the court to grant costs. When the lower court has granted half costs and full court fees, it could not be stated that it was on the basis of the consent of the parties. Therefore, the lower court erred in holding that it was a consent decree.
As issue No. 4 is decided with the above modification by the lower court, it means and implies that the lower court has also granted interest. Therefore, the lower court has to pass the decree including interest as contemplated under Order 34, Rule 11 CPC.
It is open to the lower court under order 34, Rule 11 CPC to fix the rate of interest. In support of this view, a judgment of this court in Shaik Rajiya bibi v. Shaik Moula Saheb and others (1971) 1 APLJ 493 can be usefully relied upon. In that case, the point raised was to delete the portion of the decree relating to interest from the date of decree till the date of realisation, on the ground that it was not in consonance with the judgment which had not provided for payment of interest. The court below there, accepted the said contention, and ordered amendment. The learned judge in (1) supra found that the Court could make provision for payment of subsequent interest in the decree. If the judgment contains such provision, there is no necessity to have a provision like Order 34, CPC. He also relied a judgment of this court in Ramarnurthy and Another Vs. Ravi Narasimham where the contention that when there was no provision for payment of interest in the judgment, it ought not to have been included in the decree, was negatived as being without much substance.
In Soli Pestonji Majoo and Others Vs. Gangadhar Khomka, their Lordships of the Supreme Court have held that the special provisions of Order 34 CPC are, therefore to be applied in preference to the general provisions in section 34 CPC. It is further clarified in the said decision that with regard to rate of interest. Order 34 has to be applied till the period of redemption expired, and the matter was considered to remain in the domain of contract, and thus depended upon the terms of the contract. But, after the period of redemption had expired, the matter passes from the domain of contract to that of judgment. The rights of the parties under the mortgage would thereafter depend not on the contents of the bond, but on the discretion of the court. Therefore, the lower court is entitled to fix the rate of interest as it deems just in the circumstances.
When it is held that the issue with regard to payment of interest is decided in favour of the plaintiff, in this case it is not necessary to go to the extent of stating that the judgment is silent with regard to the payment of interest. Therefore, the only point which remains is that the decree has to be framed in conformity with the provisions of Order 34, Rule 11 C.P.C. including interest in the decree. For the reasons stated above, the Civil Revision petition is allowed and the order of the lower court is set aside, and the I.A. filed by the petitioner is allowed. The lower court is directed to frame the decree in conformity with Order 34 Rule 11 CPC, including interest as provided therein. Since the respondents are absent, there will be no order as to costs.