Back
1990 Supreme(P&H) 884
PUNJAB & HARYANA HIGH COURT
I.S.Tiwana, J.
Taria Alias Tara Chard
Versus
Amar Singh
Civil Revisions No. 1902 of 1990,
Decided On : DECEMBER 17, 1990
Decree granting interest at a rate higher than six per cent, not related to a commercial transaction, is null and void under S.34 of the Code of Civil Procedure.
Headnote:
S.34 of the Code of Civil Procedure - Interest on Decree - The court held that the decree granting interest at a rate higher than six per cent was null and void as it did not relate to a commercial transaction and thus the proviso to S.34 was not attracted. The court allowed the petition to the limited extent that the executing Court shall not realize interest at a rate higher than six per cent for the period subsequent to the date of passing the decree to the date of realization of the amount.
Fact of the Case:
The petitioner sought to nullify a money decree against him, contending that the interest rate in the decree was violative of S.34 of the Code of Civil Procedure.
Finding of the Court:
The court found that the decree was null and void as it granted interest at a rate higher than six per cent, which was not justified as the decree did not relate to a commercial transaction.
Issues: The issue was whether the decree granting interest at a rate higher than six per cent was valid under S.34 of the Code of Civil Procedure.
Ratio Decidendi: The court held that the decree was null and void as it did not relate to a commercial transaction and thus the proviso to S.34 was not attracted.
Final Decision: The impugned order of the executing Court was set aside, and it was directed not to realize interest at a rate higher than six per cent for the period subsequent to the date of passing the decree to the date of realization of the amount.
1. The petitioner impugns the order of the executing Court, dated 24/04/1990, whereby his petition u/S.47 of the Code of Civil Procedure, for nullifying the decree sought to be executed against him was dismissed.
2. Concededly, he suffered a money decree in favour of the respondent and the relevant operative part of the same is reproduced as under : "This suit is coming on 18-7-1988 for final disposal before me (Sh. R.K. Bishnoi, HCS, Sub Judge, Ist Class, Dadri), in the presence of Sh. Mange Ram, Advocate, counsel for the defendant. It is ordered that the suit of the plaintiff succeeds and is decreed with costs. A decree for a sum of Rs. 5564.00 is passed in favour of the plaintiff and against the defendants with interest at the rate of Rs. 1.5% per month from the date of the filing of suit till the date of actual realisation. " The Court has held that the decree is not violative of S.34 of the Code of Civil Procedure, in any manner, and proceeded to execute it.
3. Mr. Rathore, appearing for the petitioner, contends rather vehemently that in the light of the clear language of S.34, Code of Civil Procedure, providing that no further interest subsequent to the passing of the decree can be allowed at a rate higher than 6 per cent, the impugned decree was clearly a nullity as it lays down that the defendant-judgment-debtor would be liable to pay interest at the rate of 1.5 per cent per month from the date of the filing of the suit till the date of actual realisation of the amount.
4. On the other hand, the stand of Mr. Kapoor, learned counsel for the respondents, is that since the objection as to the jurisdiction of Court to pass the decree does not appear on the face of the decree it cannot be held to be nullity. According to the learned counsel, the Court could grant a higher rate of interest as has been done in terms of the proviso to S.34 the of the Code of Civil Procedure. In a nutshell, the stand is that in the instant case the liability of the judgment-debtor may well have arisen from a commercial transaction and, therefore, the impugned decree is perfectly valid and the Court cannot go behind the decree to examine whether the controversy in the suit related to a commercial transaction or was founded on any other ground.
5. Having given my thoughtful consideration to the entire matter in the light of the submissions of the learned counsel I, however, find that the stand of the respondent decree-holder deserves to be repelled. By now, it is well laid down that the Court executing a decree cannot go beyond the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. Equally well laid down is the law that while construing a decree the Court is entitled to look into the pleadings and the judgment that precede it.
6. Examining the facts in the light of these principles, it is patent from the records that the decree in question did not relate to any commercial transaction and, therefore, the proviso to S.34 of the Code of Civil Procedure, was not attracted to the facts of this case, in any manner. In the light of this conclusion, it is patent that the interest at a rate higher than six per cent could not be granted by the Court for the period subsequent to the passing of the decree. Since the provisions of S.34 of the Code of Civil Procedure are not procedural in nature and, in fact, deal with the jurisdiction of the Court to order or direct payment of interest, the said provision could not possibly be ignored and to the extent it has been ignored, the decree is rendered null and void. For this view I seek support from an earlier pronouncement of this Court in Siri Chand V/s. Central Bank of India Yamunanagar, (1988) 93 Pun LR 473. Therefore, I allow t
