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Andhra Pradesh High Court
Judges : K.RAMACHANDRA RAO, P.CHANDRA REDDY
Chitoory Venkataraju - Appellant
Versus
M.Venkatarajamma - Respondent
Decided On : 02-10-61
COMPROMISE DECREE - INTERPRETATION - INTEREST - RATE - SUBSEQUENT TO DATE FIXED FOR REDEMPTION - ORDER 34, RULE 11 C. P. C. - APPLICABILITY - EXECUTION PETITION - BAR OF CONSTRUCTIVE RES JUDICATA.
Fact of the Case:
The appellant, the holder of two promissory notes, filed a suit for the recovery of a sum of money against the first judgment-debtor and his sons. The suit was compromised, and a compromise decree was passed, which provided for the payment of a certain amount with interest at a specified rate until payment. The first judgment-debtor filed an execution petition to enter full satisfaction of the decree, claiming that no interest was payable after the date fixed for redemption. The Subordinate Judge dismissed the petition, but on appeal, the High Court held that no interest was payable after the date fixed for redemption.
Finding of the Court:
The High Court held that the compromise decree did provide for interest subsequent to the date of redemption, as it clearly stated that the interest was payable until payment. The Court also held that the provisions of Order 34, Rule 11 C. P. C. were not attracted, as the suit was not one to enforce a mortgage or a charge. Furthermore, the Court held that the judgment-debtor could not invoke the provisions of Order 34, Rule 11 (b) C. P. C. at the stage of the execution of the decree, as no executing Court could go behind the decree itself.
Issues: 1. Whether the compromise decree provided for interest subsequent to the date fixed for redemption? 2. Whether the provisions of Order 34, Rule 11 C. P. C. were applicable to the case? 3. Whether the judgment-debtor could invoke the provisions of Order 34, Rule 11 (b) C. P. C. at the stage of the execution of the decree? 4. Whether the execution petition was barred by the principle of constructive res judicata?
Ratio Decidendi: 1. The compromise decree clearly stated that the interest was payable until payment, and therefore, it provided for interest subsequent to the date of redemption. 2. The suit was not one to enforce a mortgage or a charge, and therefore, the provisions of Order 34, Rule 11 C. P. C. were not attracted. 3. The judgment-debtor could not invoke the provisions of Order 34, Rule 11 (b) C. P. C. at the stage of the execution of the decree, as no executing Court could go behind the decree itself. 4. The execution petition was not barred by the principle of constructive res judicata, as the judgment-debtor had not raised the pleas in the previous execution proceedings.
Final Decision: The High Court allowed the Letters Patent appeal, set aside the judgment of the learned Judge, and restored the judgment of the Subordinate Judge with costs.
( 1 ) THIS is a Letters Patent Appeal against the judgment of our learned brother Sanjivarow Nayudu, J. under Clause. 15 of the Letters Patent in A. A. O. No. 179 of 1956. The facts leading upto the appeal are shortly as fallows :
( 2 ) THE appellant in this Letters Patent appeal is the holder of two promissory notes in his favour dated 7-12-33 and 8-2-34 for Rs. 2700. 00 and 2000/- respectively from the first judgment-debtor Mutha Saryarayudu. The interest was stipulated at Rs. 1-4-6% p. m. compound with quarterly rests and Rs. 1-6-6% p. m. compound with quarterly rests, respectively. On 25-7-39, the first judgment-debtor for himself and as guardian of his minor sons executed an agreement (Ex. A-2) in favour of the appellant, whereunder he undertook to create a mortgage over certain properties for the amount due under the two promissory notes. On 27-542, the appellant filed the suit O. S. No. 37 of 1942 on the file of the Sub Court, Kakinada for the recovery of a sum of Rs. 15,188-8-0 against the first judgment-debtor and his sons with a prayer that the amount be made recoverable by the sale of the property agreed to be mortgaged under the agreement dated 25-7-1939. A decree for specific performance of the agreement was also prayed for in the alternative, and then for a decree for sale. This suit was compromised between the parties and a compromise decree was passed on 30-3-1944, the Court having accorded its sanction on behalf of the minor sons of the first judgment-debtor (the compromise having been certified by the counsel for the defendants ). Under the compromise, the amount payable by the first judgment-debtor and his sons by that date was fixed at Rs. 11,599-9-0 made up of (a) Rs. 4000. 00 being the principal amount borrowed under the promissory notes, (b) Rs. 6071-12-0 being the interest thereon, calculated at 0-12-6% per month annual compound and (c) Rs. 1527-13-0 being the public costs Incurred by the appellant. The clause in the compromise decree Which has given rise to the controversy is as follows:"that the sum of Rs. 11,599-9-0, together with Interest from this day till realization at Rs. 0-12-6% p. m. , compound with yearly rests, be paid by the defendants to the plaintiff within six months from this date;" (. . . . .) "that for the said amount the plaint schedule --properly do stand security;" (. . . . .) "that in case the defendants do not so pay the decretal amount in six months, plaintiff, without the need for a final decree, do execute this decree and recover (it) with costs of execution by sale of the schedule charged property, from the 1st defendant personally and from all the properties of the defendants 1 to 6". The judgment-debtor failed to pay any amount as content plated within six months of passing of the decree. The appellant, therefore, filed E. P. No. 64/47 on the 10/02/1947, claiming interest at the rate provided for in the decree. That E. P. , was dismissed on 31-347 for non-payment of baatta for fresh notice under Order 21, Rule 22 C. P. C. The appellant filed the next E. P. No. 71 of 1950, claiming a similar relief on 20-2-50. In that E. P. the first judgment-debtor (i. e. , father) was served with a notice under Order 21, Rule 22 C. P. C. but he did not appear nor file any counter. That E. P. was eventually dismissed on 20-7-1950 for non-payment of batta for fresh notice ordered to the guardian of the minor judgment-debtors. Before the dismissal of this E. P. the first judgment-debtor made a part payment of Rs. 400a on 25-6-1950.
( 3 ) THE appellant then filed E. P. No. 332 of 1953 on 20-7-1953 ciliming interest at the rate stipulated in the compromise decree. A counter was tiled thereto on 24-9-53 raising the only plea that they were to get credit for a sum of Rs. 2,000. 00 paid to the decree-holders brother on 26-9-1952 in part satisfaction of the decree and praying for six months time to pay up the balance. The decree-holder admitted the payment of Rs. 2000. 00 and part satisfacti
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