FIRM BIROHICHAND BADRI VISHAL Vs. FIRM GANGADHAR BAIJNATH DECREE HOLDER

JUDGEMENT

(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.

(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.