Deoki Nandan, J. - (1.) THIS is a decree-holder's second appeal. The decree in suit No. 72 of 1951 for recovery of money was put into execution. The execution case was numbered as 7 of 1952 in the court of the Civil Judge, Varanasi. By a compromise in that case the decretal amount as claimed therein was paid in instalments and, in Execution First Appeal No. 176 of 1964, that execution case was ordered to be struck off by this Court's judgment dated 6th September 1966.
(2.) IT appears that when that execution application was made the amount of pendentelite interest accrued was only Rs. 3/11/- and that was the amount specified in the execution application. The compromise, it appears, was silent with regard to payment of pendentelite and future interest and the finding arrived at by this Court in the judgment dated 6th September, 1966, in Execution First Appeal No. 176 of 1964, is that the total amount of Rs. 8574/- as claimed in that execution case was paid up in full in instalments in accordance with the terms of the compromise. The question whether any pendentelite and future interest was claimable was not decided by this Court by its judgment dated 6th September, 1966 in Execution First Appeal No. 176 of 1964. IT was on the other hand observed ; "If the decree-holder had any further claim for future interest, his remedy was moving another application for execution of that part of the decree. That relief cannot be granted upon the application in Execution Case No. 7 of 1952. The appellants are right in their contention that the entire claim of the decree holder in Execution case No. 7 of 1952 has been satisfied. Consequently the property attached in that execution must be released." This was followed by the order that execution case No. 7 of 1952 is struck off in full satisfaction, so far as that execution application is concerned". The judgment in that case was the precurser of the execution application giving rise to the present second appeal. The two questions which arose on the judgment debtors objection were(l) whether the decree in suit No. 72 of 1951 stood fully satisfied; and (2) whether the application for execution is time barred. The executing court held in favour of the decree holder on both the points and dismissed the judgment debtors' objection. The lower appellate court held that although the entire decretal amount of suit no. 72 of 1951 did not stand satisfied, the present execution application is barred by time. Having heard Mr. S. N. Singh appearing for the decree-holder appellant and Mr. A. N. Bhargava for the judgment-holder-respondents I am of the view that while the judgment of the lower appellate court is wrong on both the two points, the ultimate order has yet to be upheld inasmuch as the decree in suit no. 72 of 1951 must be deemed to have been satisfied on the striking of the execution case no. 7 of 1952.
(3.) IT is not the law that where the decree awards pendentelite and future interest or damages and the interest or the damages are running and accruing from day to day when an application for execution made, the amount of interest or damages must be specified in full before it can be claimed by way of execution. As in the present case, although the execution of the decree must have been sought in full, the amount of pendentelite interest specified was the amount which had accrued due upto the date of the filing of the execution application. That could not in my opinion preclude the decree holder from recovering the full amount of pendentelite interest which accrued due, for if that had not been the law a decree-holder would be compelled to bring a fresh execution application every day or every month or every six months as the interest accrued due. Consequently when a compromise is arrived at there is always some give and take between the parties. The fact that the execution case was compromised shows that the judgment-debtor was not in a position to pay the entire decretal amount in lumpsum. If the decree holder had intended not to forgo the interest, he could have insisted on payment of the entire decretal amount then and there or to have insisted that the amount of instalments shall be in addition to the amount of interest and that the pendentelite and future interest accruing due on the decretal amount shall be paid in instalments every month. That was not the case here. IT appears clear to me that by agreeing to the compromise and accepting the payment of the decretal amount in instalments, the decree-holder must be deemed to have waived his claim for pendentelite and future interest. Since the terms of the compromise were observed by the judgment-debtor and the instalments were paid as agreed, there is no question as to what would have happened if the terms of the compromise had not been fulfilled. By fulfilment of the terms of the compromise the decree which was under execution stood satisfied. In the result it must be held that pendentelite and future interest could not now be recovered. In view of this finding it is unnecessary to go into the question of limitation. I may, however, indicate that the judgment of the lower appellate court mentions the filing of an objection under Order 21 rule 58 and a suit thereafter under Order 21 rule 63 and also another suit by decree-holder, and that the decree-holder was restrained by an interim injunction dated 16th October, 1958 from putting the house takes (?) in execution to sale. IT may be that if the period during which that injunction remained operative were excluded in computing the limitation for the execution application under section 15(1) of the Limitation Act, the execution application might have been within time, but I have not gone into the details of the matter in view of the finding arrived at by me that the decree stands fully satisfied. In the result the appeal fails and is dismissed. However, in the circumstances I make no order as to costs. Appeal dismissed.;