The main legal point established in the judgment is that the Executing Court cannot go beyond the decree under execution and an erroneous decree cannot be said to be a nullity nor can a decree based on an error be a nullity.

1. This revision filed under Article 227 of the Constitution of India is directed against the order and decreetal order dated 19.09.2005, passed by the IX Judge, City Civil Court, Chennai partly allowing E.A.No.3965 of 2005 in E.P.No.643 of 2005 as far as it disallowed the decree-holders claim for interest at 36% per annum from November 1999 to 01.01.2001 and for the pendente lite period from 02.01.2001 to 21.09.2003, the date of decree.

2. The respondent/plaintiff filed a suit in O.S.No.86 of 2001 for recovery of the advance amount of Rs.45,000/- paid for purchase of the property bearing door No.49, NSC Bose Road, Chennai 79 together with interest at the rate of 36% per annum. The petitioner/defendant contested the suit claim and filed a written statement. The trial Court granted a decree in favour of the respondent/plaintiff by judgment and decree dated 22.09.2003. The respondent/decree-holder filed E.P.No.643 of 2005, to recover the decree amount by arrest and detention of the petitioner/judgment-debtor. The petitioner filed an application under Section 47 of the Civil Procedure Code (CPC) in E.A.No.3945 of 2005, stating that the trial Court passed the decree without considering the legal position as regards the rate of interest under Section 34 CPC and since the transaction is not a commercial transaction, the trial court has no jurisdiction to award interest more than 6% per annum during pendente lite period and after the decree. Therefore, it was contended that the decree dated 22.09.2003, is a nullity. The petitioner relied upon a decision of the Punjab and Haryana High Court in AIR 1991 P&H 187[Taria alias Tara Chand vs. Amar Singh and another].

3. The decree-holder resisted the said application by filing a counter affidavit by raising a preliminary objection stating that an application under Section 47 CPC is not maintainable. Further it was stated that the decree is not a nullity and on facts, it was categorically pointed out that the petitioner agreed to pay 36% interest on Rs.45,000/-as the amount was used by the petitioner in his Silver business and the pleadings made by the plaintiff were not controverted by the petitioner/defendant and therefore, the petitioner cannot question the decree. Further, it was contended that the trial Court after considering the evidence on record, exercised discretion and awarded 36% interest and the Executing Court cannot go behind the decree and the Appellate Court alone has jurisdiction to set aside the decree, if it is found to be beyond the scope of law. It was further stated that the decision of the Punjab and Haryana High Court, does not state that the decree awarding interest at 36% is void. Further, the respondent contended that the petitioner was fully aware about the proceedings before the trial Court and his counsel cross examined the plaintiff, however the petitioner did not chose to give evidence despite several opportunities granted by the trial Court. With the above contentions, the decree-holder prayed for dismissal of the application filed Under Section 47 CPC.

4. The Executing Court solely relying upon the decision of the Punjab and Haryana High Court, referred supra, granted partial relief to the petitioner, by scaling down the interest to 6% from 22.09.2003 and denied the relief for the other periods as sought for by the petitioner. Aggrieved by such order, the petitioner has filed this revision petition.

5. The learned counsel for the petitioner reiterated the stand taken before the Executing Court and contended that the Executing Court having scaled down the interest from 22.09.2003 to 6% ought to have granted the full relief i.e. the interest for the period from November 1999 to January 2001and for the pendente lite period from 02.01.2001 to 21.09.2003. The learned counsel further submitted that the transaction between the petitioner and the respondent not being commercial in nature, the trial Court did not have jurisdiction to grant interest more