- (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 execu tion 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 in stance 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 O. 21, R. 11 of the Code of Civil Procedure (hereinafter called the Code). The trans fer certificate was for Rs. 35, 077.49 p. which consisted of Rs. 23, 408.33 p. on ac count 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 ac count 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. in cluding 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 immoveable 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 ex ecution application and the incidental costs, left a surplus balance of Rupees 6855.82 p. After the sale, an application under O. 21, R. 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 inform ed, 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 an other 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 execu tion case No. 4 of 1964. A number of ob jections 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 appel lants submitted that the second applica tion for execution giving rise to execution case No. 4 of 1964 was not legally main tainable. 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. The first submission that in the cir cumstances 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 cir cumstances 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 sub mitted by the learned counsel, must be deemed to be a conscious omission, be cause 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 ex ecution of a money decree.
(3.) IN support of the aforesaid submis sion, strong reliance was placed by the learned counsel for the appellants on the decision of the Bombay High Court in Panaji Girdhar Lal v. Ratan Chand Hazari Mai, AIR 1933 Bom 364. In this case it was observed by Beaumont, C. J. that "a judgment for principal and interest is a single money decree and cannot be said to give effect to different forms of relief." Repelling the contention of the respon dents in the case that there is nothing in the Code which prevents piecemeal exe cution, the learned Chief Justice, relying on Forster v. Baker, 1910-2 KB 636, held that "there is no authority for the pro position that a single money decree (for sums immediately payable at the date of execution) (bracketing is mine) can be ex ecuted at different times ........ the correct rule and certainly the rule of convenience, is that a party having a right to execute a decree for money (presently payable) (bracketing is mine) must en force the whole decree at the same time." The learned counsel for the appellants particularly relied on the following pas sage in the judgment of Beaumont, C. J. "I think that if a person having a right to recover a certain sum under a decree asks the Court to enforce that decree for a less sum, he must be taken to waive his right to levy execution for the balance." On the facts of the case with which Chief Justice Beaumont and Murphy, J. were concerned the second application for exe cution to realise interest was held to be not maintainable. Admittedly in that case, however, on the date when the execution application was filed the amount which under the decree had already accrued due to the decree-holder on account of in terest had not been claimed. The execu tion was only for the realisation of Rs. 1359 for which a decree had been passed plus the costs of the suit, although interest at the rate of Rs. 60 per annum had been awarded from the date of filing of the suit. Under R. 11 of O. 21 of the Code a decree-holder applying for execu tion is required to give certain parti culars, out of which the following is re quired under Cl. (g) of sub-rule (2) of R. 11 which reads as under:- "Order 21, R. 11 (2) (g)-the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross-decree, whe ther passed before or after the date of the decree sought to be executed;" Now in the instant case, the decree-holder had furnished all necessary particulars required by the law and which could be stated with precision and certainty. Ori ginally when the application was made in the Court of the 2nd Civil Judge, Kanpur, for issuing a certificate of transfer to the Court of the 1st Additional Civil Judge, Kanpur, the decree holder had mentioned the sum due under the decree, the costs awarded in the suit, the amount of in terest due on the decretal sum upto the date of application and the present costs of the execution. The decree-holder had. therefore, evidently furnished the parti culars required by law and the amount which could be ascertained and claimed as a definite sum on the date of the applica tion. When the transfer certificate was issued to the Court of the first Additional Civil Judge, the decree-holder was fully conscious of his own rights and also the requirements of the law. Therefore, in the application which he filed in the prescribed form, as reauired under O. 21. R. 11 of the Code a further sum of Rs. 117.04 p. was specifically mentioned in column No. 7 being the interest which had accrued subsequent to 17-9-1960 till the date of application viz., 18-10-1960 No question of piecemeal execution or waiver to my mind, arises in the instant case. Waiver must be attributable to some act or omission on the part of the person concerned. In the instant case, there is no specific or covert act on the part of the decree-holder on the basis of which it could be held that the claim for Interest subseauent to 18-10-1960 had been abandoned, nor was it so contended by the learned counsel for the appellants. The contention was that by necessary im plication the decree-holder must be deem ed to have made a conscious omission to claim future interest subsequent to 18-10-1960. I am unable to accept the conten tion of the learned counsel. Facts already mentioned above, clearly show that the decree-holder was very jealous and astute about his rights under the decree. This is clearly indicated by the fact that a further sum of Rs. 117.04 p. on account of interest had been specifically mention ed in column No. 7 of the execution ap plication, besides Rs. 18.30 p. on account of further costs. It is inconceivable that ordinarily any decree-holder, who has obtained a decree after being driven to the Court, will voluntarily or con sciously waive or abandon any sum which he is entitled to realise under the decree.;