PRAKASH MAL Vs. VAKIL THIKANA KHATU

JUDGEMENT

(1.) THIS is an Ijlas-i-khas appeal presented to this Court against the decision of the former High Court of Jodhpur dated 10-2-1949. An application for leave to appeal had been presented prior to the Rajasthan Appeals and Petitions (Discontinuance) Ordinance 1949, and after the certificate had been granted, this appeal was filed to this Court under Ordinance No. 40 of 1949 read with Ordinance No. 12 of 1950.

(2.) THE facts which have given rise to this appeal are that a decree for Rs. 47,0007- was passed in favour of, Jitmal Ghasimal of Nagaur on 4-2-1910 against Thikana Khatu by the Mehkma Khas of the former covenanting State of Jodhpur, payable by instalments. Various attempts were made to realize the decree and the last application was filed by the decree-holders on 19-1-1946 claiming Rs. 29,991/10/3 as follows: Rs. R. P. Amount of decree 47,000-0-0 Interest in respect of instalments remaining 058,324-0-0 unpaid. Total 105,324-0-0 Less received in execution proceedings 75,332-5-9 Balance recoverable 29,921-10-3 3. On 24-9-1947, the judgment-debtor filed an application that on the occasion of the earlier petition for execution in 1936, the judgment-debtor had filed an account showing that only Rs. 2,126/9/9 remained due, but no enquiry could be made as the Thikana was taken under 'zabti', and the matter may now be enquired into. It was also mentioned that the decree-holders should be called upon to give a detail of the interest claimed by them and to show which instalments had fallen into arrears. It was mentioned that the Thikana had always paid the instalments on due dates and no interest was, therefore, claimable. It was urged that the judgment-debtor had already deposited Rs. 20,000/- and that the entire accounts be scrutinized and the excess amount realized by the decree-holders should, be ordered to be repaid to him. THE learned District Judge after enquiry held on 5-8-1948 that the principal amount of the decree remaining unpaid was Rs. 10,137/4/3 and interest on instalments remaining unpaid amounted to Rs. 28,065/12/ -. He reserved two items of Rs. 471/8 and Rs. 600/-, alleged to have been paid by the judgment-debtor, but whose receipt was denied by the decree-holders, for further enquiry. He found that Rs. 18. 974/8/6 had been deposited by the judgment-debtor and he directed this amount to be paid to the two decree-holders in certain proportions according to their interest in the decree,

(3.) THE decree-holders filed an appeal which according to the rules then in force lay to the Chief Court. THEy claimed interest on the deficit of the amount ordered to be paid in cash as also interest. on overdue instalments and also objected to the adjustment of an item of Rs. 1,178/13/towards repayment. THE Chief Court by its decision dated 8-4-1917 decided that the decree-holders had got nearly the sums due to them under the decree. A further observation was made that in Haisiat Court interest was not allowed on overdue instalments after the amount due was settled and for that reason also the court would not allow interest. As regards the item of Rs. 1,178/13/- the case was remanded-with certain directions. On remand the debt was admitted by the Haisiat Court to be Rs. 36,791/6/- by an order dated 22-12-1920. THE effect of the decision of the Chief Court will be noticed at a later stage but the importance of these proceedings in the Court Sardaran and the Haisiat Court lies in the fact that the Thikana did not challenge the claim of the decree-holders for allowing interest on the ground that no interest was allowed under the decree but on other grounds which have been noticed above. Various execution petitions were submitted thereafter from 25-9-1924 to 16-1-1946, in each of which the decree-holders claimed interest on overdue instalments and it was conceded by learned counsel for the judgment-debtor that an objection was never taken by the judgment-debtor that no interest had been allowed under tne decree on overdue instalments. Learned counsel for the appellants contended that the point should be deemed to be concluded on the principle of constructive 'res judicata' more particularly as on one occasion when the decree-holders took out execution proceedings claiming certain overdue instalments and interest thereon and attached a particular house of the judgment-debtor, the court disallowed the objection of the judgment-debtor that no amount was due, and in passing that order made a mention that a certain amount of principal and interest was then due. This order is dated 5-12-1927 in execution file No. 152 of 1925-26. According to that order Rs. 2,000/- in cash (balance of the amount to be paid in cash according to the terms of the decree) Rs. 8,595/- on account of overdue instalments, and Rs. 10,595/- as interest on such instalments, were due. But this was only an interim order refusing to stay execution and the only point relevant at the time was whether some amount was due against the judgment-debtor and execution could proceed. So long as the principal decretal amount was due, the execution could proceed and, therefore, any mention in the order that interest was due on overdue instalments would not be a point directly and substantially in issue between the parties. So long as the principal amount was due, the judgment-debtor could not resist execution even if the interest was not due. THE order, therefore, does not bar the plea of the judgment-debtor by any principle of constructive 'res judicata'.