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Execution Application No. 29 of 1984, decided on 21st May, 1984.

‑‑O. XXI, r. t & O. XLI, r. 5‑Money decree awarded with interest till payment‑Judgment‑debtor filing appeal against decree‑ Execution of decree stayed on deposit of decretal amount in Court as security‑No notice issued to decree‑holder of such deposit decree‑holder on dismissal of appeal in execution application demanding interest on all unpaid amount including amount deposited in Court‑Held : Deposit in Court was not payment of amount within meaning of O. XXI, r. 1, C.P.C., but was a security >;for stay of execution‑‑No notice was issued to decree‑holder of such deposit‑Decree‑holder, held, entitled to interest on unpaid amount of decree till final payment in circumstances.

J. Ramardya Shambogue v. Sherbett Yenkatranamayya A I R 1919 Mad. 445 and Mockanaicker v. A. K. Venkatasami A I R 1950 Mad. 807 ref.

J. H. Rehmitoola for Plaintiff.

This application under section 151, C. P. C. i9 filed by the plaintiff D/H for issuance of execution against the defendant J/D for recovery of balance decretal amount of Rs.33,149.60 and future interest till payment. No counter‑affidavit to the application has been filed and defendant J/D and their counsel remained absent when this application was called for hearing in the Court. The circumstances under which the present appli cation is filed by the D/H may be stated as follows :‑

Plaintiff D/H instituted a suit for compensation and damages amounting to Rs.1,50,000. The suit was decreed by a learned Single Judge of this Court by judgment, dated 8th November, 1965 in the sum of Rs.38,000 with interest @ 6% per annum from the date of filing of suit till the amount is paid. The decree in the above suit was challenged by the defendant (J. D.) Province of West Pakistan in L.P.A. No. 202/67. During the pendency of the above L.P.A. the defendant/ appellant filed an application before the appellate Bench for stay of execution. The stay application filed by the defendant/appellant was disposed of by the L.P.A. Bench without notice to the D/H as follows :‑

"Let the appellant/Judgment‑debtor deposit the decretal amount in Court, but the payment thereof will be considered if and when the respondents apply for it. The application is disposed of accordingly."

The L.P.A. filed by the defendant J/D was finally dismissed by judgment, dated 12th January, 1981. After dismissal of the appeal the plaintiff D/H applied for execution of the decree in which he claimed interest on the principal amount upto 10th March, 1981 namely, the date on which the execution application was filed, amounting to Rs.38,606. During the course of the execution proceedings the D/H applied for payment of the sum of Rs.50,738.40 deposited by the defendant J/D in L.P.A. No. 202/67. This amount which had lapsed was recalled and paid to D/H through a Pay Order, dated 15th December, 1983. The learned counsel for the plaintiff D/H contends that since the amount deposited by the J/D in appeal was not in accordance with the provisions of Order XXI, rule 1, C. P. C. and no notice of the above deposit was ever given to the plaintiff D/H, they are entitled to the interest on the above amount till the pay ment was made to them. The plaintiff also claims for future interest until satisfaction of decree in full. The D/H has accordingly claimed interest on the decretal amount from the date of institution of the suit namely, 10th August, 1964 upto 10th December, 1983 the date of the payment of Rs.50,378 to him and after deducting the amount received by them he has prayed for issuance of execution for the balance outstanding as on 15th December, 1983 amounting to Rs.33,149.60. The question, which, therefore, arises in these circumstances is whether the deposit made by the defendant J/D in L.P.A. No. 202167 amounts to pay of decretal amount within the meaning of Order XXI, rule 1, C. P. C. The defen dant J/D and their counsel in spite of notice have failed to appear and, therefore, I had advantage of only hearing the learned counsel for the plaintiff D/H in the case. After hearing the learned counsel for the plaintiff I am of the view that the plaintiff D/H is entitled to the, interest on the decretal amount in the circumstances of the case upto 15th December, 1983. In accordance with the decree the plaintiff D/H is entitled to the interest on the amount decreed in his favour until its payment to him. Order XXI, rule 1, C. P. C provides that where pay ment is made in Court under clause (a) of sub‑rule (i) of rule 1 of A Order XXI notice of such payment has to be given to the D/H. It is well‑settled law that where a decree provides payment of interest on decretal amount and payment is made by the J/D in accordance with the provision of sub‑rule (i) of rule 1 of Order XXI, C. P. C. and notice of such deposit is given to D/H then the interest on the decretal amount is not payable after the date of such notice to the D/H. After hearing the learned counsel for the D/H, I called for the file of L.P.A. No. 202/67 in which the deposit was made by the J/D. I find that on 8th October, 1969 the learned appellate Bench directed deposit of the decretal amount in Court by the appellant J/D and no notice of this application was given to the plaintiff D/H. There is also nothing on the file to show that even after the deposit was made, any notice of the deposit was given to the plaintiff D/H. In fact from the execution application filed by the plain tiff D/H it is quite clear that he was not aware of this deposit until he filed the application for execution in the Court. It is also quite clear that the deposit made by the defendant J/D in L.P.A. No. 202/67 was not a deposit of the decretal amount for payment to plaintiff D/H as required by rule 1 of Order XXI, C. P. C. but it was deposited as a security for stay of the execution against them. This is clear from the contents of the application under Order XLI, rule 5, dated 20th September, 1969, filed on behalf of the appellant J/D before the learned Appellate Bench. It reads as under :‑

"Application under order XLI, rule 5, Civil Procedure Code. It is respectfully prayed that this Hon'ble Court may be pleased to stay the execution by allowing Judgment‑Debtor to deposit the decretal amount in Court. It is further prayed that before withdrawing the amount the decree‑holder may be ordered to furnish bank guarantee to the extent of decretal amount.

(Sd.)

ABDUL HAFEEZ MEMON,

Asstt. Advocate‑General (W. P.),

High Court Building, Karachi."

In these circumstances the deposit made by the defendant J/D in Court in L.P. A. No. 202/67 could not be treated by any process of reasoning as a deposit within the meaning of Order XXI, rule 1, C. P. C. That being the position the interest on the decretal amount could not cease to run from the date of the deposit made by the defendant J/D in Court. In my view it is only when the defendant J/D makes deposit of decretal amount in Court unconditionally for payment to the D/H and plaintiff D/H is notified of such deposit by the Court that the interest on the decretal amount‑ shall cease to run from the date of deposit. If any authority is needed for the view reference may be made to the case of J. Ramarava Shambogue v. Sherbett Venkatranamayya (A I R 1919 Mad. 445) and Mockan aicker v. A. x. Venkatasami (A I R 1950 Mad. 807).

I am, therefore, of the view that the plaintiff D/H is entitled to interest on the decretal amount only upto 15th December, 1983 when a sum of Rs.50.730.40 which covered the decretal amount and part of interest was paid to him. I accordingly allow the application and direct the defen dant J/D to deposit the balance of the interest, amounting to Rs. 33,149.60 within two months from today failing which the execution will issue for its recovery against the defendant J/D in accordance with the law.

M. B. A. Application allowed.

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