9911796707
TMI Blog2009 (3) TMI 1111X X X X Extracts X X X X X X X X Extracts X X X X ..... 88,770/- lying deposited in this Court. On this application, the Court on 23rd April, 2008 passed an order that the same would be considered at the time of disposal of EFA(OS) 9/2007. 3. We may give a brief factual background giving rise to the execution appeal. In relation to a construction contract between the parties, some disputes arose. They were referred to arbitration. The Arbitrator rendered an Award. The Award dated 12.8.1998 was challenged by the appellant DDA by filing objections under Sections 30 and 31 of the Arbitration Act, 1940. The respondent took an objection that it is the Arbitration and Conciliation Act, 1996 which was applicable and the objections preferred by the DDA were not maintainable. This submission of the respondent was accepted by the learned Single Judge who dismissed the objections preferred by the DDA as not maintainable. The DDA preferred FAO(OS) 93/2002 against the dismissal of the objections by the learned Single Judge. On 15.3.2002, in CM No. 219/2002 the Court stayed the execution of the decree which followed the dismissal of the objections preferred by the DDA, subject to the appellant DDA depositing the amount due and payable under the decr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin six weeks from the date of the judgment dated 15.7.2005. 6. The respondent preferred an Execution Petition No. 168/2005 to execute the decree dated 15.7.2005. Notice was issued in the execution petition on 7th October, 2005 returnable on 11th November, 2005. On that date counsel for the judgment debtor-appellant herein sought time to take instructions and the matter was adjourned to 28th November, 2005. On 28th November, 2005 once again the matter was adjourned to 14th December, 2005 at the request of the judgment debtor. On 14th December, 2005 the judgment debtor made a statement that money had already been deposited and is lying deposited in FAO(OS) 93/2002, and that the judgment debtor has no objection if the decree holder moves for withdrawal of the said amount. The decree holder contended that the amounts, even if deposited by the judgment debtor, are short of the decretal amount. The Court directed that the decree holder may withdraw the amount deposited after seeking orders of the competent court and thereafter file the execution, if necessary. The Court observed that in the event the deposited amount is short, the decree holder/respondent herein would be at liberty to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that the Respondent was entitled to the sum along with interest, the Respondent was only paid the amount deposited by the Appellant. 10. The learned Single Judge in the impugned judgment held that the issue that arose for consideration was whether the amount deposited by the DDA satisfied the requirement of payment being made to the decree holder within six weeks. If the answer to this question is in the affirmative, the decree holder would be liable to pay interest only @ 9% per annum. On the other hand, if the date on which the decree holder received the amount is to be the date reckoned, the payment not having been made within six weeks of the passing of the decree, the decree holder would be entitled to interest @ 18% per annum and then no question of over payment to the decree holder would arise. The learned Single Judge held that the issue is no longer res intigra and had been decided in Hindustan Construction Corporation v. DDA and Ors. 2002 (65) DRJ 43 and A. Tosh & Sons India Ltd. v. N.N. Khanna 2006 (89) DRJ 248. 11. In Hindustan Construction Corporation(supra) the DDA had deposited the amount pursuant to orders of the Division Bench before which appeal of the DDA wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards the principal. 21. As an illustration, we can take the following situation. Suppose, a decree is passed for a sum of Rs. 5,000/- by the trial court along with interest and costs and the judgment debtor deposits the same and gives notice to the decree holder either by approaching the executing court under Order XXI Rule 2 of the Code or by making the deposit in the execution taken out by the decree-holder under Order XXI Rule 1 of the Code. The decree holder is not satisfied with the decree of the trial court. He goes up in appeal and the appellate court enhances the decree amount to Rs. 10,000/- with interest and costs. The rule in terms of Order XXI Rule 1, as it now stands, in the background of Order XXIV would clearly be, that the further obligation of the judgment debtor is only to deposit the additional amount of Rs. 5,000/- decreed by the appellate court with interest thereon from the date the interest is held due and the costs of the appeal. The decree holder would not be entitled to say that he can get further interest even on the sum of Rs. 5,000/- decreed by the trial court and deposited by the judgment debtor even before the enhancement of the amount by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avail of the concessional rate of interest of 9% p.a. in accordance with the decree dated 15th July, 2005. The said deposit did not enure for the benefit of the respondent, and the respondent could not have withdrawn any part of the amount deposited in Court on its own, without either the no objection from the appellant, or by pursuing an execution petition. 14. Order XXI CPC deals with Execution of Decrees and Orders. Rule 1 prescribes the modes of paying money under a decree. It reads: 1. Modes of paying money under decree - (1) All money, payable under a decree shall be paid as follows, namely: (a) by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank; or (b) out of Court, to the decree-holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing; or (c) otherwise, as the Court which made the decree, directs. 2. Where any payment is made under Clause (a) or Clause (c) of Sub-rule (1), the judgment-debtor shall give notice thereof to the decree-holder either through the Court or directly to him by registered post, acknowledgement due. 3. Where mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposited in the Court being available for appropriation to the respondent decree holder after the judgment dated 20th April, 2004. Even when the fresh decree was passed on 15th July, 2005, the amount already lying deposited in the FAO(OS) 93/2002 did not become available to the decree holder for appropriation automatically. It is not the appellant's case that it communicated its consent to the respondent for the withdrawal of the amount lying in deposit in the disposed of FAO(OS) 93/2002 at any point of time within a period of six weeks from the date of the passing of the decree dated 15th July, 2005. In fact, the appellant appears to have taken no steps whatsoever to either tender the decretal amount with concessional rate of interest within six weeks, or even otherwise to facilitate the withdrawal of the amount deposited in the disposed of FAO(OS) 93/2002 by the decree holder to the extent of the decretal amount. It was only after the decree holder had preferred Execution Petition 168/2005 well after the expiry of the six weeks period from 15th July, 2005, the appellant judgment debtor for the first time gave its no objection to the decree holder withdrawing the amount depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to take out execution proceedings, or to chase the judgment debtor to realize the payment under the decree. It was for the judgment debtor to itself come forward and tender the decretal amount, or at least to facilitate the withdrawal of the amount deposited by the judgment debtor in Court, within the time granted by the Court. It is not the appellants case, and it could not have been its case that upon passing of the decree dated 15th July, 2005, the decree holder could have on its own approached the appellant Court for withdrawal of the decretal amount from the deposit lying in FAO(OS) 93/2002. The amount lying deposited in FAO(OS) 93/2002, which was allowed in favour of the judgment debtor, could not have been accessed by the decree holder without the consent/no objection of the judgment debtor, or through the medium of the execution of the decree holder by obtaining orders from the executing Court. 19. The submission of the appellant judgment debtor that the mere deposit of the amount in the FAO(OS) 93/2002 resulted in the stoppage of accrual of any further interest from the date of deposit is also meritless. Even in cases where the decretal amount flows into the coffers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r from out of the said amount deposited in the Registry of the Court, which would have been amounted to payment under Order XXI Rule 1 CPC. 21. In Mathunni Mathai (supra) though the judgment debtor had made the deposit in the executing Court, but intimation in respect thereof was not given to the decree holder. The Supreme Court held that the payment could not be deemed to have been appropriated towards principal unless the decree holder admits it to be so. While examining Order XXI Rule 1, 2 and CPC, the Supreme Court observed: The amended Sub-rule (2) removes the doubt if there was any that the judgment-debtor is not absolved of the obligation of informing the decree-holder by written notice even in respect of deposit in court either directly or by registered post. The purpose of addition of the expression, 'either through court directly or by registered post acknowledgment due' is that the judgment-debtor should not only give notice of payment but he must ensure that the decree holder has been served with the notice. The ratio laid down in Meghraj case applies now with greater rigour. The reason for the rule both in the unamended and amended provision appears to be th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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