The New India Assurance Company Ltd. vs Ramvilas Vgayvargiya

K.K. Lahoti, J.

This revision is directed against the order dated 16.9.2003 and order dated 28.10.2003 passed by 10th Additional District Judge, Bhopal in Execution Case No. 142-A of 2000 by which the objections raised by the applicant were turned down and the applicant was directed to pay the remaining decretal amount.

Facts necessary for the decision of this case are as under :- Respondent Ramvilas filed a civil suit for recovery of certain amount from the applicant. This suit was registered as Civil Suit No.l42-A of 2000 and by judgment and decree dated 18.12.2001, a decree was passed against the applicant in following terms:

i) That the defendant shall pay to the plaintiff in respect of supply of additional non-veg and additional evening breakfast amount respectively Rs. 9,000/- and Rs. 3,000/- per month between 16.7.1993 and 31.12.1995.

ii) If the aforesaid amount is not paid within a period of one month to the plaintiff then defendant shall pay to the plaintiff from 31.1.1996 to the date of payment an interest at the rate of 12% per annum.

iii) That the defendant along with his expenses shall also bear the plaintiffs entire litigation cost. The advocate fees if certified be paid as per the schedule.

The applicant had not challenged the aforesaid judgment and decree by filing an appeal. The applicant deposited Rs. 3,48,0007- on 17.1.2002 and Rs. 6,000/- on 18.1.2002. Thereafter the applicant deposited cost Rs. 58,356/-on 16.8.2002 which is not in dispute at present.

The controversy is that the plaintiff decree holder made an application before the trial Court that the amount which was payable by the applicant within a period of one month from the date of decree ought to have deposited up to 16.1.2002 which was not deposited by the applicant so the decree holders entitled for the interest on the entire decretal amount from 31.1.1996 which comes to Rs. 2,75,937/- including the cost of litigation. The executing court by order dated 16.9.2003 permitted the aforesaid amendment in the execution application and by order dated 28.10.2003 found that the aforesaid amount was not deposited by the judgment debtor within the time fixed by the decree so the decree holder is entitled for the interest.

Before the aforesaid, on 16.8.2002 an application was filed by the applicant u/s 151 C.P.C. by which it was stated that the applicant was entitled to deposit the decreetal amount up to 18.1.2002 and the aforesaid amount has been deposited by the applicant within the aforesaid period so the decree holder is not entitled for any interest. This application was contested by the decree holder on the ground that within a period of one month, the decreetal amount was not deposited. The period fixed by decree was expired on 16.1.2002 and no amount was deposited till date. The judgment debtor stated that the date of the deposit shall be 19.12.2001 under the General Clauses Act, 1897, and the date on which the decree was passed shall be excluded under Sec. 12(2) of the Limitation Act, 1963 so the period shall commence from 19.12.2001 and if the period commences from 19.12.2001, the amount deposited by the judgment debtor was within the limitation. The executing court accepted the contention of the judgment debtor that 18.12.2001 shall be excluded for the purposes of counting limitation and the limitation shall commence from 19.12.2001 but found that the aforesaid amount ought to have been deposited within one month i.e. 30 days and the period of 30 days had completed on 17.1.2001, the judgment debtor had not deposited the decreetal amount within the period of 30 days which is apparent with the fact that the judgment debtor has deposited Rs. 6,000/- on 18.1.2002. Rs. 6,000/- has been deposited on 31st day. So far as the cost is concerned, the executing Court found that there was no direction for deposit of the cost within the period of 30 days so the contention of the decree holder in this regard has no substance. The executing court found that Rs. 6000/- was deposited on 18.1.2002 which was not deposited within the period of 30 days so the decree holder is entitled for interest on remaining amount from the judgment debtor and he has acquired the right to recover interest from the judgment debtor. The executing court found that the decree holder has shown the deposited amount Rs.3,48,0007- while the judgment debtor has further deposited Rs. 60007- so total amount deposited comes to Rs. 3,54,000/- and after due adjustment of the aforesaid amount the decree holder was directed to re-calculated the interest for the period from 18.1.2002 to 25.7.2002 and accordingly execution application be amended. Recording aforesaid findings, the executing court rejected the application filed by the judgment debtor u/s 151 C.P.C.

This order dated 16.8.2002 was challenged by judgment debtor before the High Court in civil Revision No. 1227/02. This revision came for hearing on 13.5.2003 and this Court finally decided the revision by the following order.

None for the petitioner. Respondent by Miss. Vandana Shrivastava. Argument heard contents of petition and impugned order perused. The revision is directed against the order dated 16.8.2002 passed by X Additional District Judge, Bhopal in Execution Case No. 142A/ 2000-2002 rejecting the application u/s 151 of the C.P.C. filed by the petitioner, New India Assurance Company Limited. As per judgment dated 19.12.2001, the petitioner was requested to make full payment within 30 days of time i.e. by 17.1.2002. An amount of Rs. 6000(six thousand) was deposited by the petitioner on 18.1.2002. Accordingly, the Court below rightly directed the petitioner to make payment of interest as stipulated in judgment-decree for the period from 18.1.2002 to 25.7.2002. As submitted by learned counsel for respondent there in no force in the revision. It fails and is dismissed. No order as to costs.

Thereafter the judgment debtor moved an application for review of the order dated 13.5.2003 but by order dated 28.7.2003 Annexure P-6 the review application was dismissed.

In this revision the judgment debtor raised the following contentions:

That u/s 12(2) of the Limitation Act the date on which the decree was passed ought to have been excluded in computation for the limitation for the purposes of the deposit of amount.

That in the decree a period of one month was provided and not 30 days and u/s 3(35) of General Clauses Act, 1897, when the month is given it shall mean a month according to British Calendar and the period of limitation shall be up to 18.1.2002 and not up to 17.1.2002. That judgment debtor deposited the amount of Rs. 3,48,000/- on 17.1.2002 which amount was undisputed within time. On ascertaining calculation mistake, the judgment debtor further deposited Rs. 6000/- on 18.1.2002 which was also within time so there is no liability of payment of interest under the decree on judgment debtor. Executing Court erred in passing the impugned order, so the aforesaid orders may be quashed.

Shri K.S. Wadhwa, learned counsel appearing for the decree holder supported the order passed by the court below and submitted :

i) That the entire decreetal amount ought to have been deposited by the judgment debtor within a period of 30 days from the date of the decree.

ii) The amount was not deposited by the judgment debtor within 30 days so the decree holder is entitled to recover interest on whole of the amount from the date of the suit 31.1.1996 till the date of payment at the rate of 12% per annum.

iii) That the trial Court has rightly passed the impugned order which needs no interference from the Court.

To appreciate the rival contention of the parties, firstly it is to be seen from which date the period of one month shall be computed. Section 12(2) of the Limitation Act provides exclusion of time in legal proceedings. For ready reference Sec. 12(2) reads thus :

12(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.

The aforesaid provision is very specific which excludes the day on which the judgment and decree or the order was passed. So far the purpose of counting one month period, date 18.1.2002 has to be excluded. Because there may be circumstances that the decree may have been passed in the evening hours or in the afternoon hours, so to meet out the aforesaid exigency, statutory provision has been made u/s 12(2) of the Limitation Act to exclude that day for the purposes of counting the period of limitation and the aforesaid provision is applicable in the present case also for computation or commencement of limitation, for the compliance of the decree which was passed by the Court. In view of the aforesaid, there is no doubt that 18.12.2001 is to be excluded for the purposes of computation of limitation for the compliance of the decree.

Now the second question is the period of limitation for the payment of the decreetal amount as directed in Condition No. 2 by the Court. It is apparent that one month period was provided to the judgment debtor for the payment of the decreetal amount to the plaintiff decree holder, Month has been defined u/s 3(35) of the M.P. General Clauses Act which reads thus:

Sec. 3(35): "Month'' shall mean a month reckoned according to the British Calendar"

In the British Calendar there may be 28,29,30,31 days as per the current month, so for the purpose of ascertaining the month the relevant period has to be seen. If at the relevant period the month is of 28 days or 29 days, or 30 days or 31 days then as per the relevant period the month has to be reckoned for the purposes of ascertaining the period of month and a uniform period of 30 days cannot be treated for the computation of a period of month. As per provision of the General Clauses Act the aforesaid period has not been ascertained in this case, and the month has to be reckoned according to British Calendar. This question has been considered by a Division Bench of Andhra Pradesh in In re vs. Metha and others (AIR 1970 Anp234) held thus :

It therefore, follows that three months referred to in Section 106 of the Factories Act, which is a Central Act, means three calendar months and not 90 days calculated at the rate of 30 days per month. The Factories Act which had defined ''day'' ''week'' and ''year'' had unfortunately not defined the term ''month'', though in several of the provisions, including the important provisions, relating to limitation, the word ''month'' has come to be used. This necessitates having resort to the provisions of the General Clauses Act and as Section 3 (35) defines, ''month'' as a calendar month, the term three months in Section 106 of the Factories Act would only mean a period of three calendar months.

Division Bench considering the expression ''month'' held that it is not necessarily mean 30 days but goes according to the Gregorian Calendar, unless the provision otherwise requires.

In similar circumstances the Orrisa High Court in Marakanda Sahu Vs. Lal Sadananda Singh, where a question was in respect of direction to deposit of cost within one month from the date of order, held thus :

On a restoration petition under 0.9, Rr.8 and 9, the Court after being satisfied that there was sufficient cause for the inability of the plaintiff to proceed within the suit, passed the following order on 25.10.1948: "This application for the restoration of the suit is allowed if the plaintiff deposits Rs. 100/- towards the costs of the defendants within 1 month from this date failing which the application shall stand dismissed". On 25.11.48, the petitioner applied to the same Court for time to deposit the sum. The Court held that the time had expired and the case stood automatically dismissed. In revision,

"Held" (i) that the equitable principle of section 9 of the General Clauses Act should, as a general rule, be applied for the construction of decrees and orders of the Courts. Therefore, in computing the period of one month, the 25th October, 1948 should be excluded, (ii) By the words ''within a month'' the Subordinate Judge in his order dated 25.10.48 meant that the sum of Rs. 100/- should be deposited before the 26th of November, 1948 that is to say, before the expiry of the Court hour on the 25th November, 1948. Hence on the 25th November, 1948 the case did not stand automatically dismissed, and the Court should have waited till the expiry of the Court hours on that day.

In view of the aforesaid settled law, the judgment debtor was entitled to deposit the decreetal amount up to 18.12.2001 and the analogy applied by the executing Court, holding that the judgment debtor ought to have been deposited within a period of 30 days, apparently erroneous and cannot be sustained under the law. But in this case as stated hereinabove a development had already occurred when the applicant challenged the order dated 16.8.2002 before this Court in Civil Revision 1227/02 and the aforesaid revision was finally decided by order dated 13.5.2003 in which this Court observed that the judgment debtor was required to make full payment within 30 days time by 17.1.2002 then the aforesaid concluded question as observed in the Revision cannot be re-opened by this Court and as per the order dated 13.5.2003, in previous revision the petitioner judgment debtor was required to deposit the amount up to 17.1.2002. In these circumstances because of the aforesaid order the deposit up to 17.1.2002 may be treated within the time period as fixed in the decree.

Now the second question arises whether non deposit on 17.1.2002 or on depositing Rs. 6,000/- on 18.1.2002 the decree holder was entitled to claim interest on the entire decreetal amount or he was entitled to claim interest as per the decree only on Rs. 6,000/- which was left to deposit within the time period as fixed in the decree. In this case the terms of the decree may be seen which provides that the judgment debtor shall pay to the decree holder plaintiff the amount as per condition No. 1 but the condition No. 2 makes provision that if the aforesaid amount is not paid within a period of one month then the defendant judgment debtor shall pay to the plaintiff decree holder an interest at the rate of 12% per annum from 31.1.1996 till the date of payment of the amount. The aforesaid decree does not say that if any part of the amount could not be deposited by the judgment debtor, then the decree holder shall be entitled to claim interest on whole of the amount, though part of the decreetal amount was deposited by the judgment debtor within the time period affixed by the decree. In the absence of this clause a harmonious construction of direction No.2 in the decree may be, that for the remaining amount which could not be deposited by the judgment debtor, the decree holder shall be entitled to claim interest, from the date of suit till the payment, but not on whole of the decreetal amount. In these circumstances the executing court erred in directing the judgment debtor to pay the interest on whole of the decreetal amount though a cheque of Rs. 3,48,000/- was deposited in the Court on 17.1.2002 by the judgment debtor. The judgment debtor who deposited the cheque on 17.1.2002, within time period, cannot be held liable for the payment of interest on the entire decreetal amount. The deposit of a cheque of the aforesaid amount shall be treated within the time period in the Court. For the remaining amount only the decree holder can claim interest from the judgment debtor which is Rs. 6,000/- and was deposited by cheque on 18.1.2002 before the executing court. The executing court cannot go beyond the terms of decree, and has to give effect it only. In the aforesaid circumstances, the executing court erred in passing the aforesaid order and directing the judgment debtor to pay the interest on whole of the decreetal amount because of non-deposit of part of the amount, which is in meager, within a period of 30 days or treating it a default of nonpayment of the entire decreetal amount on 17.1.2002 and accordingly the impugned orders are not sustainable under the law and are hereby quashed.

Now in view of the aforesaid discussion, following directions are issued:

The amount deposited by the judgment debtor by cheque on 17.1.2002 Rs. 3,48,000/- shall be treated as deposit within the time period as fixed by the decree.

The decree holder shall be entitled to interest on Rs. 6,000/- as per decree from 31.1.1996 till 18.1.2002 from the applicant judgment debtor.

That cost deposited by the judgment debtor Rs. 58,356/- on 16.8.2002 shall be treated as a valid deposit of the cost.

That the executing Court shall reassess/recalculate the remaining amount of interest and after recalculation of the amount shall pass a fresh order in accordance with law.

If amount deposited by the judgment debtor is found deficit, the executing Court shall give a reasonable period of 30 days to deposit the amount by the Judgment Debtor. In case it is found that excess amount has been deposited by the judgment debtor, the judgment debtor shall be entitled to get the refund of the excess amount from the decree holder within a period of 30 days from the date of passing of the order.

In the peculiar facts there shall be no order as to costs of this revision.