Abani Kumar Kirty, J. - (1.) This appeal by the judgment -debtors arises out of execution proceedings. The relevant facts lie within a narrow compass. Suit No. 71 of 1954 was filed by the respondent against the appellants for the recovery of Rupees 23,408/5/3 with pendente lite and future interest. It was decreed with costs by the 2nd Civil Judge, Kanpur on 18 -12 -1959; pendente lite and future interest at the rate of 6% per annum was also awarded. The first application for execution of the decree was made on 18 -10 -1960, giving rise to execution case No. 49 of 1960 in the Court of the 1st Addl. Civil Judge, Kanpur. It, however, appears that an application was in the first instance made on 17 -9 -1960 in the Court of the 2nd Civil Judge, Kanpur, which had passed the decree, and as prayed by the decree -holder, a certificate transferring the decree for execution was sent to the Court of the 1st Additional Civil Judge, Kanpur. In that Court an application in the prescribed form, was submitted by the decree -holder as required under Order 21, Rule 11 of the Code of Civil Procedure (hereinafter called the Code). The transfer certificate was for Rs. 35,077.49 p. which consisted of Rs. .23,408.33 p. on account of principal amount decreed, Rupees 2,692.25 p. on account of costs, Rupees 8965.16 p. on account of interest upto 15th September, 1960 and Rs. 11,75 p. on account of present costs of execution. In the Court of the 1st Addl. Civil Judge, Kanpur the total amount mentioned in column No. 7 of the application in the prescribed form was Rs. 35,194.53 p. including Rs. 117.04 on account of interest from 17 -9 -1960 to 18 -10 -1960. A sum of Rs. 18.30 p. was also claimed on account of further costs of execution. Thus, the total sum for which execution was sought amounted to Rs. 35,212.83 p. Execution was sought by attachment and sale of some Immovable properties. Ultimately, the properties against which execution had been sought were sold on 22 -7 -1963 for Rs. 42,000. The decree -holder was the auction purchaser. The sale price, after adjusting the amount claimed in the execution application and the incidental costs, left a surplus balance of Rupees 6855.82 p. After the sale, an application under Order 21, Rule 90 of the Code was filed by the judgment -debtors, which having been dismissed an appeal was preferred in this Court. That appeal, I am informed, is still pending and in it an order has been passed staying the confirmation of the sale. In execution case No. 49 of 1960, no final orders striking off the execution in full or part satisfaction have so far been passed. The decree -holder filed another application seeking recovery of Rs. 3862.38 p. on account of interest from 18 -10 -1960 to 22 -7 -1963 on the decretal sum of Rs. 23,408.33 p. This application was registered as execution case No. 4 of 1964. A number of objections against this application were raised by the judgment -debtors and those objections having been dismissed the present appeal has been filed in this Court.
(2.) The learned counsel for the appellants submitted that the second application for execution giving rise to execution case No. 4 of 1964 was not legally maintainable. Firstly, because the claim for further interest must be taken to have been waived or relinquished and secondly, because the application itself was barred by the principles of res judicata.
(3.) The first submission that In the circumstances of the case the claim for further interest subsequent to 18 -10 -1960 must be deemed to have been waived or relinquished by the decree -holder, was also supported by the contention that the decree being for money there could be no piecemeal execution. According to the learned counsel, from the facts and circumstances of the case, it was evident that there was a conscious omission on the the part of the decree -holder to claim, further interest. This submission was sought to be based on the fact that in column No. 7 of the execution application no claim or mention was made by the decree -holder about future interest after 18 -10 -1960. This omission, it was submitted by the learned counsel, must be deemed to be a conscious omission, because the decree -holder knew that it was entitled to future interest on the decretal sum upto the date of full recovery. The argument was also reinforced on the ground that the Code itself does not warrant the splitting up or piecemeal execution of a money decree.;