The New India Assurance Company ... vs Bingi Kesava Rao
2023 Latest Caselaw 1765 AP

Citation : 2023 Latest Caselaw 1765 AP
Judgement Date : 31 March, 2023

Andhra Pradesh High Court - Amravati

The New India Assurance Company ... vs Bingi Kesava Rao on 31 March, 2023

Bench: K Manmadha Rao

       HON'BLE DR. JUSTICE K. MANMADHA RAO

      CIVIL REVISION PETITION No.1051 of 2018

ORDER :

This Civil Revision Petition is filed by the petitioner

against the Order, dated 07.11.2017 passed in E.P.No.28 of

2012 in M.V.O.P No.117 of 2017 on the file of Court of the

Principal District Judge, Srikakulam.

2. Heard Sri Naresh Byrapaneni, learned Standing

counsel appearing for the petitioner and Sri Srinivasa Rao

Kurapati, learned counsel appearing for the respondents.

3. The facts of the case are that the Decree holders/

respondents herein filed E.P. No.28 of 2012 before the

Principal District Judge, Srikakulam, under Order XXI Rule

43 CPC and sell the E.P schedule properties under Order 21

Rule 64 and 66 of CPC for realization of EP amount of

Rs.3,33,469/- and the same was allowed under Order XXI

Rule 43 CPC and held that in failure of deposit the balance

amount, issue fresh moveable attachment against the 2nd

J.Dr on payment of process.

4. Learned Standing Counsel for the petitioner-

Insurance company submits that the Court below failed to

see that the amounts are deposited while the appeal is

pending pursuant to the directions of this Court and as per

the directions that amount is towards the Award and it was

not directed to deposit interest. He further submits that the

Court below failed to see that the Decree Holder wrongly

calculated and has wrongly claimed the amount deposited

towards and full and final satisfaction. Therefore, learned

Standing Counsel requests this Court to pass appropriate

orders as stated supra.

5. On the other hand, learned counsel for the

respondents submits that the Decree Holders filed E.P.

against the 2nd JDr for recovery of EP amount by way of

attachment of movables and sell them in auction and the 2nd

JDr knowing fully well about to satisfy the decree amount,

intentionally avoiding to deposit the decree amount. He

further submits that after passing the attachment orders

under Order XXI Rule 43 CPC on 15.09.2017, the 2nd J.Dr

filed cheque bearing No.197709 dated 13.10.2017 for an

amount of Rs.2,31,781/- for realization of the Award passed

in MVOP No.117 of 2007. He further submits that the 2nd

JDr is liable to deposit the remaining amount of

Rs.1,06,804/- due as on 30.10.2017 and also liable to pay

interest over the entire awarded amount in MVOP No.117 of

2007.

6. On perusing the above citation, it is clear that if

the amount deposited by the J.Dr falls short of the decretal

amount, the D.Hr is entitled to apply the rule of

appropriation by appropriating the amount first towards

interest, then towards costs and subsequently towards

principal amount due under the decree. In the instant case,

there is no dispute that the trial Court awarded an amount

of Rs.2,35,000/- with proportionate costs and directed to

pay 9% interest per annum from the date of petition and if it

is not paid within three months it shall carry interest @ 12%

p.a. Aggrieved by the same, the 2nd J.Dr preferred an appeal

in MACMA before this Court and stay was granted by this

Court.

7. In a case of V. Kala Bharathi and others Versus

Oriental Insurance Company Limited, Branch Chittoor1,

wherein the Hon'ble Supreme Court held that :

The next finding of the High Court is with regard to interest on interest. In money suit, the amount consists of principal and interest till the suit is filed. But, in case of award passed under the Act, the question of inclusion of any interest on the decretal amount does not arise. Unfortunately, the High Court proceeded on the assumption that it amounts to interest on interest which is prohibited under Section 3(3)(c) of Interest Act, 1978 (for short, 'the Interest Act'). This is not so, as in the facts and circumstances of the present case, the decree passed by the trial Court or -the appellate Court does not contain the mode of appropriation and in the absence of any such direction, the decree-holder is entitled to appropriate the amount deposited by the judgment debtor first towards interest, then cost and thereafter towards principal.

26. In view of above and more particularly keeping in view the ratio of the Constitution Bench judgment in Gurpreet Singh (supra), where considering an identical question in respect of Order XXI Rule 1 of the CPC, it was held that if the amount deposited by the judgment debtor falls short of the decretal amount, the decree- holder is entitled to apply the rule of appropriation by appropriating the amount first towards interest, then towards costs and subsequently towards principal amount due under the decree; we are of the opinion that the appellants herein are entitled to the amount awarded by the Executing Court, as the amounts deposited by the judgment debtor fell short of the decretal amount. After such appropriation, the decree-holder is entitled to interest only to the extent of unpaid -