Point of Law : Suit for Recovery of amount - Suo motu power to amend a judgment or decree - Decreetal amount has not been correctly mentioned in decree and pre-suit interest component awarded in paragraph 10 of judgment is missing in decree.

ORDER:

This revision is directed against the order dated 25.10.2016 in E.A.No.601 of 2016 in E.P.No.289 of 2015 in O.S.No.277 of 2013 passed by the I Senior Civil Judge, City Civil Court, Hyderabad, whereunder the application filed under Section 151 of the Code of Civil Procedure by the respondent/judgment debtor to direct the petitioner/decree holder to redeposit the excess amount of Rs.1,16,800/- received by him in the execution petition along with interest at 12% p.a. from the date of deposit on 23.12.2015 has been allowed.

2. A money suit in O.S.No.277 of 2013 was decreed by the judgment dated 29.07.2015. As against recovery claim of Rs.5,21,000/- along with interest, the suit was partly decreed for an amount of Rs.3,00,000/- with interest at 12% p.a. (Rs.36,000/-). The total being Rs.3,36,000/- with future interest at the same rate from the date of suit till realization on the principal sum of Rs.3,00,000/-. However, in the decree it was shown that the suit was partly decreed for a sum of Rs.3,00,000/- along with 12% interest per annum from the date of suit till realization for principal sum of Rs.3,00,000/-, costs of Rs.19,808/- was also awarded. On the face of it, the decree was not correctly prepared and was not in accordance with the judgment.

3. The Court below, while answering issue No.3, in the suit judgment, granted a sum of Rs.3,00,000/-, being principal and Rs.36,000/- being interest at 12% p.a. from the date of Ex.A1 (money receipt) till date of suit. The interest component of Rs.36,000/- from the date of Ex.A1 till suit was not incorporated in the decree.

4. While the matter stood thus, it appears that Rs.2,00,000/- was deposited by the judgment debtor towards part satisfaction of the decree under demand draft dated 29.09.2015. The decree holder having received the said amount, filed EP.No.289 of 2015 for a sum of Rs.3,30,308/- and warrant was issued for attachment of movable properties of judgment debtor. When the Court Bailiff went for execution of warrant, the judgment debtor gave demand draft dated 23.12.2015 for Rs.3,30,000/-. In total, the judgment debtor paid a sum of Rs.5,30,308/-

5. It is the case of the judgment debtor that though the decree holder is entitled to Rs.4,13,508/-, he claimed an amount of Rs.1,16,800/-, which was paid under coercion to the Bailiff. EP was closed on 12.04.2016. Prior to that, a cheque petition was filed by the decree holder in the first week of March 2016, which was allowed. The judgment debtor filed a calculation memo claiming that he is entitled for redeposit of Rs.1,16,800/- with interest at 12% p.a. from the date of deposit on 23.12.2015 and costs of Rs.1,000/- for the proceedings.

6. In the counter affidavit, the decree holder, while denying the allegations in the petition for refund, contended that the judgment debtor voluntarily deposited a sum of Rs.2,00,000/- towards part satisfaction and failed to deposit the balance amount. The decree holder was forced to file EP.No.289 of 2015 for recovery of balance amount of Rs.3,30,308/-. The Court below ordered attachment of EP schedule property. When the Court bailiff went to execute the warrant, the judgment debtor was ready with a demand draft dated 23.12.2015 for a sum of Rs.3,30,000/- which was drawn as per the own calculation of the judgment debtor as per the judgment. The decree holder further stated that he has not claimed any excess amount as alleged. The decree was passed for Rs.3,36,000/-, out of which Rs.3,00,000/- was the principal component and Rs.36,000/- was the pre-suit interest component at 12% p.a. from the date of Ex.A1 till date of filing of the suit and future interest was also awarded at 12% p.a. on principal amount of Rs.3,00,000/- from the date of suit till realization.

7. The executing Court, having noted that decree was passed for a sum of Rs.3,00,000/- + Rs.36,000/-, total amount being Rs.3,36,000/- with future interest at 12% p.a., further noted that the decree was prepared showing that suit was partl