Ram Swaroop Khattar vs Foremost Industries India Ltd.
1991 Latest Caselaw 810 Del

JUDGMENT

Y.K. Sabharwal, J.

(1) The judgment debtor has filed the Execution Application No. 88/90 under Section 47 read with Order 21 Rule 90 and Sec 34 of Civil Procedure Code . challenging the validity of the decree passed in Suit No. 360/ 84 granting pendente lite and future interest at the rate of 18% per annum on the suit amount. The challenge is on the ground that grant of interest, on the suit amount is contrary to Section 34 of Code of Civil Procedure in as much as the decree awards interest not on the principal sum only but on the suit amount which includes interest as well as principal.

(2) By judgment and decree dated 18th April, 1984, as modified on 12th July, 1984, the suit of the plaintiff for recovery of Rs.2,55,000.00 filed under the provisions of Order 37 of Code of Civil Procedure was decreed. The plaintiff has also been awarded pendente lite and future interest at the rate of 18 % per annum. Mr. Mohan, learned Counsel for the judgment debtor, contends that the Court can award pendente lite and future interest only under the provision of Section 34 and thus the interest can be awarded only on the principal sum.

(3) Learned Counsel relies upon the decision of Single Judge of Punjab & Haryana High Court in ShriChand v. Central Bank of India and Another, 1983 (1) C.L.J. 547 holding that the Court has the jurisdiction to grant interest after filing of the suit only in accordance with the provisions under Section 34 of Code of Civil Procedure and any order made in contravention thereof would be without jurisdiction and it would be open to challenge even in execution proceedings, being a nullity and void decree. The submission of Mr. Mohan is that as the decree of which execution is sought awards interest on the suit amount, namely, principal and interest and the decree, to that extent, is void and unexecutable.

(4) The question as to what sum in the suit is required to be adjudged as 'Principal sum, is a question of fact to be decided in the suit. It is not the case that the amount originally advanced or originally due can alone be adjudged as 'Principal sum'. In Sydicate Bank v. West Bengal Cement & others Air 1989 Delhi 107, I had rejected the contention that interest under Section 34 of Code of Civil Procedure could be awarded only or. the original sum advanced as also the contention that interest can never become principal sum. It was also held that respondent had not been able to show how the suit amount claimed was not the principal sum and it could not be informed that it is not the principal sum because it includes interest from the date of advance till the date of the suit. In M/s. Jagdamba Rice Mills and others v. Oriental Bank of Commerce, , decree of the Trial Court adjudging the suit amount, namely, principal & interest amount as principal sum was confirmed by the High Court and it was held that : - "AT the time of the passing of the decree, the total amount was adjudged to be the principal amount and, therefore, the plaintiff bank was rightly given interest thereon at the rate of 13-1/3% per annum. Moreover, the amounts sought to be realised by the bank from the defendants were given from time to time in the notices . issued by it and, therefore, the principal amount found due not only means the principal amount as such, but also the amount due on interest which has become part of principal amount as per the calculations of the Bank."

(5) The Executing Court can not start investigation and decide into documents filed in the suit with a view to examine the basis on which the decree adjudges the principal sum. The Executing Court can not go behind the decree. It can not question the legality or correctness of the decree. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the Court passing it, its invalidity, can be set up in execution proceedings. Where there is lack of inherent jurisdiction, it goes to the root of competence of the Court to try the case and a decree which is a nullity is void and can be declared to be void by any Court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in the collateral proceedings (See Sunder Dass v. Ram Prakash, ). In the present case however, it can not be held that the decree is a nullity for lack of inherent jurisdiction. The amount to be adjudged as 'Principal Sum' under Section 34 of the Code of Civil Procedure depends upon the facts and circumstances of each case and the Court passing the decree is fully competent to adjudge the said amount.

(6) could also be useful to notice that the decree was challenged by the judgment debtor in appeal before the Division Bench and later in special leave petition filed in the Supreme Court. Both failed. In the said appeals it was not contended that the Court passing the decree had no power to award pendente lite and future interest on the said amount.

(7) For the reasons stated above R.A. 88/90 is dismissed. L.A. 86/90 which prays for stay of execution pending the decision of R.A.88/90 is also dismissed. On the facts of the case, parties are left to bear their own costs.