Ujagar Singh, J. - (1.) A preliminary decree for the recovery of Rs. 4,25.129.30, interest Rs. 83,112.25 paise and Rs. 25,811/ - by way of costs was passed by the Additional Senior Subordinate Judge, Panipat on 25.2.1987 in favour of the Plaintiff -decree holder and against the judgment -debtor. On non payment of the said amount, a final decree was passed on 16.7.1988. The property in dispute was hypothecated with the Plaintiff decree -holder and therefore, the suit was under, Order 34 of the Code of Civil Procedure (the Code in short) Auction of the hypothecated property was directed vide order dated 8.9.1988 and it was to take place on 24.10.1988. The Defendant -judgment debtors filed objections, claiming that the decree was a nullity, as it infringed mandatory provisions of S. 34 of the Code and as such, further interest could not be charged at the rate more than 6 per cent per annum on the principal amount Similarly, it was challenged that compound interest could not be allowed to be charged as claimed in the execution petition by the Plaintiff decree -holder. The executing Court accepted the plea that the judgment -debtors could challenge the Tate of interest in the execution proceedings if the same is awarded Under Section 34 of the Code, but it was of the view that in the instant case, S. 34 of the Code was not applicable and reliance was placed on State Bank of India v. Neeru Plastic Works and Ors., (1984) 86 P.L.R 382, wherein the property was mortgaged and the Plaintiff was held entitled to the agreed rate of interest at 18 p. c. p. a. and it was held that interest was not excessive, keeping in view the prevailing market position.
(2.) THE executing Court dismissed the objections as without merit and directed the proceedings in the execution petition to continue. The judgment -debtors have filed this revision petition. It came up for preliminary bearing on 19.10.1988. Notice was issued for 4 -11 -1988. Stay of auction was granted.
(3.) THE learned Counsel for the revision -Petitioner has argued that even in a mortgage suit for sale of the property, the decree is always for the recovery of money and therefore, according to him, S. 34 of the Code is applicable. In the alternative, he has argued that even is mortgage suits, there is a limit imposed upon interest to be awarded by the Court under Rule 11 of Order 34 of the Code This rule imposes the same limitation on the Court as S. 34 of the Code.;