In this revision petition filed under Section 115 of Code of Civil Procedure, the petitioner assails the order dated 16.08.2013 in E.P.No. 4/2005 in O.S.No. 45/2002.
2. Bereft of unnecessary details, the essential facts absolutely necessary for the purpose of disposal of this petition are as follows:
The petitioner was the defendant in O.S.No.45/2002 which is a suit for money. On the basis of a compromise entered into by the parties, a compromise decree was passed. The said decree was put in execution.
3. On finding that the petitioner had means to pay the debt and he was willfully defaulting the payment, arrest warrant was issued. He approached this Court by way of C.R.P. No. 947/2005 against the then order in E.P. Claiming that there was no enquiry that he has means to pay the amount, the order then passed by the execution court was challenged. This Court, after appreciating the materials before it, found that there was no irregularity or illegality in calling for exercise of jurisdiction under Section 115 of the Code. This Court upheld the finding of the court below which on appreciating the materials before it, came to the conclusion that the judgment debtor had means to pay the amount. However, by way of indulgence this Court disposed of the C.R.P.No.947/2005 as follows:
“Petitioner is permitted to pay the entire balance decree debt in thirty equal monthly instalments, the first monthly instalment falling due on 1.1.07 and the subsequent due dates being first day of the remaining months. If petitioner commits default in payment of two consecutive monthly instalments, respondent is entitled to get the petitioner arrested and detained in prison.”
4. The petitioner defaulted in payment as ordered by this Court in the above C.R.P.. Again warrant was issued and that made the petitioner to approach this Court by way of C.R.P.No.461/2010 and C.R.P.No 124/2010. This Court, after elaborate consideration of the materials before it, especially holding that the plea of no means was not available at later point of time to the petitioner in the facts and circumstances of the case, upheld the order of the court below but again by way of indulgence, passed an order as follows:
“7. Resultantly, this revision is dismissed. But, petitioner is permitted to pay the amount due under the decree in instalments subject to the following conditions:
1. Petitioner shall pay the amount due under the decree in thirty (30) monthly installments beginning from 01.10.2010 onwards.
2. The monthly payment shall not be less than Rs. 25,000/- (Rupees Twenty Five thousand only) provided that by the last installment the entire amount due shall be paid.
3. The amount shall be deposited in the executing court on or before the 5th (fifth) of every month.
4. It is made clear that in case of default in payment of any three (3) installments or the entire amount is not paid by 30 installments it will be open to the executing court to proceed with personal executioin against petitioner without any further enquiry regarding means.”
5. This Court, while disposing of the said C.R.P., directed that the warrant of arrest issued against the petitioner shall stand kept in abeyance for 30 months beginning from 01.10.2010 onwards so as to enable the petitioner to comply with the order in the above C.R.P.. That was not the end of the proceedings. He again approached this Court by way of O.P.C.No.2837/2012 under Article 227 of Constitution of India seeking to have the proceedings in E.P.No.4/2005 kept in abeyance for six months so as to enable the petitioner to pay the decree debt. After elaborately referring to the earlier facts and highlighting his plight, financial stringencies at that point of time, he prayed for a lenient view from this Court. The fact that the marriage of the petitioner's daughter was going to be held recently persuaded this Court to show some leniency to the petitioner and that O.P.(C) was disposed of as follows:
“Resultantly, the Original Petition is disposed of as under:
(a) In modification of Ext.P2, order it is directed that petitioner shall discharge the entire decree debt as below:
(i) Petitioner shall pay/deposit in the executing court for payment to the respondent no less than Rs. 3,00,000/- (Rupees Three lakhs only) on or before the last working day of January, 2013.
(ii) Petitioner shall pay the entire balance amount due under the decree within four (4) months from the last working day of January, 2013.
(iii) It is directed that the execution proceeding against petitioner shall stand in abeyance during the above said periods.
(iv) It is made clear that if any of the above conditions is not complied, it will be open to the respondent to proceed with execution of the decree notwithstanding the time granted hereby.
(b) It is made clear that petitioner will not be granted any further time for payment of the decree debt.”
6. The petitioner thereafter very ingeniously made move before the execution court pointing out that he was not liable to pay 12% interest after the date of decree and was only liable to pay 6% interest and in the statement submitted by him, he calculated the interest at 6% interest after the date of decree. The decree holder in his turn opposed the claim and pointed out that as per the decree, the judgment debtor was liable to pay 12% interest and going by the decree, the amount due to the decree holder as on 24.07.2013 was ₹ 7,05,484.99/-. The petitioner's contention that he was liable to pay interest only at 6% was overruled and the impugned order was passed.
7. Attacking the impugned order, the learned counsel for the petitioner contended that the court below was bound to pass the reasoned order and the laconic order now passed suffers from various legal infirmities. For the first time before this Court now it is contended that as per the compromise decree, the petitioner was liable to only pay the amount shown in the plaint and had not undertaken to pay 12% interest after the date of the suit. It is contended that calculation of the decree holder at 12% interest for the decree amount after the date of decree cannot be countenanced. He is entitled to only 6% interest as per law. Calculated on that basis, the amount due to the decree holder would be as per the statement said to have been filed by the petitioner dated 16.08.2013. It is also pointed out that the petitioner had never agreed to pay 12% post decree interest and that could not have been granted also.
8. The learned counsel for the respondent opposed the prayer. It is pointed out by the learned counsel that at no point of time, especially on three earlier occasions, when the petitioner had approached this Court, he had such a contention that he was not liable to pay 12% interest from the date of decree. All that he prayed was for time and installment facility to pay the decree debt. The decree debt was calculated and shown in the execution petition at 12% interest after the decree and therefore the petitioner could not be ignorance about the claim in the decree and amount due as per the decree. It comes too late in the day for the petitioner now to contend that he is liable to pay only 6% interest after the decree.
9. After having heard the learned counsel on both sides, there seems to be considerable force in the submissions made by the learned counsel for the respondent. The petitioner had approached this Court on three earlier occasions which have already been made mention of and on all those three occasions, he asked for instalment facilities and this Court showed indulgence and leniency to him considering the financial difficulties faced by him. On none of those occasions, the petitioner had a contention that he was not liable to pay the 12% post decree interest and that was illegal. He only wanted instalment facility to pay the decree debt which as rightly pointed out by the learned counsel for the respondent will be discernible from the earlier proceedings.
10. There is no dispute regarding the fact that in the E.P., the interest was shown as 12% even after the decree and the amount due to the decree holder on that basis was claimed. It is therefore clear that he was fully aware of the fact that he had to pay interest at 12% even after the post decree stage on getting notice of E.P..
11. It may be true that the court below could have passed more elaborate order. But that was not necessary in the light of the fact that as already noticed, on three earlier occasions, the petitioner had approached this Court and on none of those occasions, the present contention was raised before this Court for consideration. On the other hand, the judgment debtor was allowed to pay the decree debt in instalment. This Court had kept the arrest of warrant in abeyance and held that if the amounts as directed were not paid, warrant is to be executed. Under those circumstances, it is extremely doubtful if the Execution Court could have gone behind the decree and the directions issued by this Court.
12. The contention raised by the learned counsel for the petitioner that the petitioner had not agreed to the payment of 12% post decree interest is without any basis at all. He had agreed for a compromise decree on the basis of the claim in plaint which was 12% post decree interest. Even after the E.P. was filed showing that the decree holder was claiming at 12% interest after the date of decree, he did not feel it necessary to object the decreetal amount shown in the E.P. Belated submission now made can be treated only as mischief to get over the orders of this Court and to see that the amounts are not paid in terms of the orders of this Court.
This Court, therefore finds no lacuna or illegality or impropriety in the order of the court below and this Civil Revision Petition is without any merits whatsoever and it is accordingly dismissed. However, there will be no order as to costs. The dismissal of this petition will not preclude the petitioner from taking such steps as are available to him in law.
ds //True Copy// P.A. To Judge Sd/-
P.BHAVADASAN JUDGE