Lic Of India vs Sh. Vishnu Mohan Aggarwal
2000 Latest Caselaw 46 Del

ORDER

K. Ramamoorthy, J.

1. The plaintiff, who is the judgment creditor in a mortgage action, is the petitioner in the revision petition. The petitioner filed the Suit No. 416/89 for the recovery of Rs. 70,617.80 on the strength of the mortgaged house by the defendant. The defendant contested the suit, let in evidence, filed documents, but did not appear at the time of the argument. The Court framed the following issues for determination :-

1. Whether the plaintiff is entitled to preliminary decree for a sum of Rs. 70,670-60 P. as prayed for? OPP

2. Whether the plaintiff is entitled to interest @ 15-1/2% compounding monthly from the date of filing of the suit till realisation? OPP

3. Whether the plaintiff is entitled to costs, fire insurance premium etc.? OPP

4. Whether the suit is barred by time? OPD

2. On the second Issue, the learned Judge, who tried the suit, gave the following finding :-

"The amount of interest @ 15-1/2 % p.a. compounded monthly was payable under the mortgage deed after default and it is not shown that this is harsh, excessive or un-reasonable. There is no reason or circumstance as to why this rate should not be allowed to the plaintiff after the institution of the suit till realisation. The plaintiff is thus entitled to interest @15-1/2 % p.a. compounded monthly from the date of filing of the suit till realisation. This issue is accordingly decided in the affirmative."

However, in the operative portion of the judgment, the learned Additional District Judge, who tried the suit, said :-

"I accordingly, pass a preliminary decree in favour of the plaintiff and against the defendant for recovery of Rs. 70,670-80; costs of the suit; costs, charges and expenses property incurred or to be incurred towards insurance premiums of the property by the plaintiff up-to-date with interest then at the rate of 15-1/2 % p.a. and pendente lite and future interest @ 15-1/2 % p.a. The defendant shall pay the decretal amount within six months, failing which the plaintiff shall be entitled for final decree for realisation of the aforesaid amounts by sale of the mortgage property."

3. The judgment was rendered on the 20th of January, 1994. On the 19th of July, 1994, the judgment debtor paid a sum of Rs. 1,38,803 as per the judgment and decree by the learned Additional District Judge. The judgment debtor/respondent requested the petitioner to return the documents of title. The petitioner gave a reply stating that a sum of Rs. 67,694.90 along with interest @ 15.5 % per annum was due. The respondent, when the petitioner did not give the documents back, filed an application under Order XXXIV, Rule 5 CPC.

4. Immediately thereafter, on coming to know of this application, the petitioner filed an application for amendment of the decree stating that the judgment creditor was entitled to interest @ 15.5 % per annum compounding on monthly from the date of filing of the suit till the date of payment. It was further stated that when specific finding had not been given in this behalf in the operative part of above judgment, rate of interest is mentioned as 15.5 % p.a.

5. Both the applications were dealt with by the learned Additional District Judge and disposed of by order dated 27.2.1997. The learned Additional District Judge allowed the application filed by the respondent and dismissed the application filed by the petitioner. They are challenged in the above revision petition.

6. The learned senior counsel for the petitioner, Mr. S.K. Taneja, submitted that when the learned Additional District Judge, while delivering the judgment in view of the suit, had dealt with the claim of interest by the plaintiff/petitioner on Issue No. 2 and given a specific finding, by inadvertence the error in operative part of the judgment, the rate of interest mentioned on Issue No. 2 is omitted to be mentioned. The decree, according to the learned senior counsel, was drafted in accordance with paragraph 21 of the judgment without giving effect to the finding on Issue No. 2. This is an error committed by the learned Additional District Judge, and, therefore, the petitioner had to file an application for amendment of the judgment of the decree.

7. The learned counsel for the respondent, Mr. V.K. Sawhney, submitted that having regard to the scope of the power of the Court under Sections 152, and 153 CPC, the order passed by the lower court declining to amend the decree is correct in law and is in accordance with the principles laid down by the Supreme Court. The error that is sought to be remedied is not an inadvertent one and that cannot be set right by an amendment. The remedy of the petitioner was to file an appeal or the petitioner could have filed an application for review and the procedure adopted by the petitioner is not permissible in law.

8. The learned senior counsel for the petitioner, Mr. S.K. Taneja, referred to the judgment of the Supreme Court in "Master Construction Co. (P) Vs. State of Orissa & Another", . In paragraph 7 of the judgment, the Supreme Court held :

"The material part of R. 83 of the said Rules reads :

"The Commissioner of Sales Tax .... may at any time correct any arithmetical or clerical mistakes or any error apparent on the face of the record arising or occurring from accidental slip or omission in an order passed by him or it."

Rule 83 provides a summary remedy within a narrow compass. The jurisdiction of the Commissioner under this rule is limited and is confined only to the correction of mistakes or omissions mentioned therein. An arithmetical mistake is a mistake of calculation; a clerical mistake is a mistake in writing or typing. An error arising out of or occurring from an accidental slip or omission is an error due to a careless mistake or omission unintentionally made. There is another qualification, namely, such an error shall be apparent on the face of the record, that is to say, it is not an error which depends for its discovery, on elaborate arguments on questions of fact or law. The accidental slip or omission is an accidental slip or omission made by the court. The obvious instance is a slip or omission to embody in the order something which the court in fact ordered to be done. This is sometimes described as a decretal order not being in accordance with the judgment. But the slip or omission may be attributed to the Judge himself. He may say something or omit to say something which he did not intend to say or omit. This is described as a slip or omission in the judgment itself. The cause for such a slip or omission may be the Judge's inadvertence or the advocate's mistake. But, however, wide the said expressions are construed, they cannot countenance a re-argument on merits on questions of fact or law, or permit a party to raise new arguments which he has not advanced at the first instance. If that was the scope of R. 83, the question is, whether the Commissioner's order is within its scope."

9. In "Ram Singh Vs. Sant Singh & Others", AIR 1930 Lahore 210, `the Lahore High Court took the view that the application for amendment could be maintained.

10. The learned senior counsel for the petitioner, Mr. S.K. Taneja, referred to the judgment of the Madras High Court in "M/s. T.S. Radhakrishnan Vs. The State Bank of India", . The Madras High Court dealt with the scope of Order IV, Rule 7 of the Original Side Rules, 1956 and ratio therein is not very much apposite for the present discussion.

11. The learned senior counsel for the petitioner, Mr. S.K. Taneja, also referred to the judgment of the Madhya Pradesh High Court in "State of Madhya Pradesh Vs. Man Mohan Swaroop", . Here is a case where, as noticed above, a specific finding had been given by the trial Judge with reference to the claim of interest by the plaintiff/mortgagee. That was not challenged by the defendant/judgment debtor.

12. The learned Additional District Judge, in the instant case, without following up the finding on Issue No. 2, while dictating the operative part of the judgment, apparently, ignored the finding given by himself on Issue No. 2. The basic principle is, "act of court cannot prejudice any party".

13. Section 152 CPC reads as under :-

"Amendment of judgments, decrees or orders.

Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."

14. The learned senior counsel for the petitioner, Mr. S.K. Taneja, submitted that the facts of the case squarely come within the ambit of the provisions, as the error committed by the learned trial Judge in ignoring the finding rendered by him on Issue No. 2 and granting only simple interest in the operative para of the judgment is an accidental slip or omission, and, therefore, it is liable to be corrected under this provision. The learned senior counsel submitted that the principles and the rulings cited by him in support of his contention need not be elaborated further.

15. The learned counsel for the respondent, Mr. V.K. Sawhney, vehemently submitted that the learned trial Judge had been conscious of the fact while considering the rate of interest and had granted only simple interest, and the alleged slip or omission can be corrected only by review or by appeal and not under provisions of Section 152 CPC. The learned counsel for the respondent, Mr. V.K. Sawhney, submitted, firstly, that it was within the discretion of the trial Judge to grant pendente lite interest and future interest, and the learned trial Judge in exercising his discretion, had granted simple interest, and, therefore, no case has been made out by the petitioner for amendment.

16. The learned counsel for the respondent, Mr. V.K. Sawhney, referred to the judgments of the Supreme Court in "Dwaraka Das Vs. State of Madhya Pradesh & Another", , and in "Bhiki" Lal & Others Vs. Tribeni & Others", . The learned counsel also referred to the judgment of the Andhra Pradesh High Court in "Emani Venkata Subba Rao Vs. Kanikicharla Nagabhushanam", AIR 1984 AP 352.

The learned counsel also referred to the judgment of the Rajasthan High Court in Smt. Gulab Bai Vs. Ram Prakash", . The learned counsel referred to the judgment of the High Court of Assam in "On the death of Debeswar Sarma, Mrs. Swarna Sarma & Others Vs. Uttam Chandra Medhi", AIR 1968 Assam & Nagaland 66, where the claim with reference to mesne profit was dealt with by that Court.

17. In the case decided by the Supreme Court in "Dwaraka Das Vs. State of Madhya Pradesh & Another", , the facts, as noticed by the Supreme Court, are as under :

"In respect to the tenders invited by the respondent-State, the appellant herein was allotted the work for the construction of a hostel for 100 boys at polytechnic Ujjain for which agreement (Ex. P-22) was executed between the parties on 26th December, 1960. The entire work was required to be completed within 29 months, with further condition that 1/4 of the work was to be completed within 5 months, half of the work to be completed within 10 months and 3/4 work was to be completed within 15 months. The work order was issued to the appellant on 26th December, 1960 who started construction on 28th December, 1960. The Superintending Engineer is alleged to have obstructed the progress of the work with the result that the work could not be completed within the time schedule. The contract executed between the parties was rescinded by the respondents vide letter dated 19.6.61 on the ground that the appellant had not completed even 10 per cent of the work despite lapse of more than 9 months. The appellant however, contended that the termination of the contract was in breach thereof. He claimed Rs. 20,000/- as damages for breach of contract besides claiming other amounts payable by the respondent to him. Suit for recovery of Rs. 32,000/- filed by the appellant was decreed with a direction that the appellant would also be entitled to future interest @ 6 per cent per annum."

The appellant before the Supreme Court filed an application for amendment under Section 152 CPC. The learned trial Judge allowed the application granting pendente lite interest. There was an appeal to the High Court. The High Court of Madhya Pradesh set aside the order of the trial Judge granting interest pendente lite. The argument before the Supreme Court was that theno granting of interest for the period when the matter was pending in Court was an accidental omission and the same was rectified by the trial court by allowing an application for amendment under Section 152 CPC. Reference was made to the following rulings in the judgments :-

1. "Jainab Bai & Others Vs. Madhya Pradesh State Road Transport Corporation". 1969 MP Journal 716.

2. "Feroz Shah Vs. State", 1957 Madhya Bharat 70.

3. "Maharaj Puttu Lal Vs. Sripal Singh & Others", AIR 1937 Qudh 191.

4. "West Bengal Financial Corporation & Another Vs. Bertram Scott (1) Ltd.", .

Supreme Court posited :

"Section 152 CPC provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip of omission. The exercise of this power contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The correction contemplated are of correcting only accidental omission or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the Section cannot be pressed into service to correct an omission which is intentional, how erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the province of Sections 151 and 152 of the CPC even after passing of effective orders in the lis pending before them. No Court can under the cover of the aforesaid sections modify, alter or add to the terms of its original judgment, decree or order. In the instant case, the trial court had specifically held the respondent-State liable to pay future interest only despite the prayer of the appellant for grant of interest with effect from the date of alleged breach which impliedly meant that the court had rejected the claim of the appellant insofar as pendente lite interest was concerned. The omission in not granting the pendente lite interest could not be held to be accidental omission or mistake as was wrongly done by the trial court while order dated 30th November, 1973. The High Court was, therefore, justified in setting aside the afore-said order by accepting the revision petition filed by the State."

The ratio is very clear and it supports the case of the petitioner and not the case of the respondent.

18. In "Bhiki Lal & Others Vs. Tribeni & Others", , what happened in that case was, the Senior Subordinate Judge, Ajmer, while making a preliminary decree in a suit for accounts, disallowed the interest to the appellant before the Supreme Court from 14th of `September, 1936 to 13th of March, 1950 on the sum of Rs. 25,000/-'. There was appeals and cross-appeals to the High Court, which were dismissed.The matter was carried further to the Supreme Court. Directions were issued by the Supreme Court. Ultimately, when the matter came up before the learned Senior Civil Judge, the learned Senior Civil Judge held that the appellants before the Supreme Court would be entitled to get interest prior to March 13, 1950 and they would not be entitled to any amount higher than what was claimed in the plaint. The learned Senior Civil Judge held that the appellants were liable to furnish accounts of the receipts of mortgaged property from 10th of August, 1950 (the date of filing of the suit till they hand over possession of the mortgaged property to the respondent). The learned Senior Civil Judge further held that the appellants would be entitled to interest on the sum of Rs. 30,000/- @ 6 % p.a. from the date of the filing of the suit till 17th of August, 1953, and that was also made conditional on the appellants furnishing account of the receipts from the hypothetic Ted properties. The plaintiffs/appellants did not file any appeal challenging the preliminary decree. They filed an application for amendment of the decree. What was contended before the learned Civil Judge was that the directions given by the learned Senior Civil Judge was not in conformity with the directions issued by the Supreme Court and they had to be amended. The Supreme Court held :

"If a decree is not in conformity with the judgment, the Court has the duty to amend the decree so as to bring it in conformity with the judgment. But the fallacy of the argument lies in the fact that the fresh preliminary decree made by the Senior Civil Judge was not the decree of this Court. Pursuant to the directions given by this Court and those given by the High Court, the learned Civil Judge heard fresh arguments and made a considered judgment. The decree passed, it cannot be disputed was in terms of the judgment. That judgment had become final as the appellants did not prefer an appeal against the same, but instead filed an application for amendment of the decree. The High Court was, therefore, right in holding that the fresh preliminary decree was in conformity with the judgment of the Civil Judge and, therefore, there was no scope for amendment. The order is perfectly right and there is no ground for interference."

The Supreme Court further held :

"Even so, one of the directions given in the preliminary decree will have to be amended as in the events that have now happened that directions is not in conformity with the judgment of the Senior Civil Judge. We have held in Civil Appeal No. 257 of 1983 in which judgment was just now delivered, that the High Court was wrong in holding that the respondents would be entitled to an account for the rents realized by the appellants for the period between the date of the plaint and the preliminary decree. Pursuant to the order of the High Court, which we have held how to be wrong to that extent, the learned Civil Judge gave a direction that the appellants shall be liable to furnish accounts of the receipts of the usufruct of the mortgaged properties from August 10, 1950, the date of the filing of the filing of the suit, till they hand over possession of the mortgaged properties to the defendants and that amount shall be adjusted towards the decretal amount". As we have held that, that direction to the said extent was wrong, the order of the learned Civil Judge was also wrong to that extent and if that be so, the decree was also incorrect in that regard. We, therefore, hold that the High Court should have modified the decree to that extent as it would not be in conformity with the judgment as modified by the earlier judgment of this Court. We, therefore, substitute for the words in para 13 of the fresh preliminary decree "from 10th August, 1950 the date of filing of the suit" the words "from April 25, 1953, the date of the original preliminary decree". With this modification, the appeal is, dismissed with costs."

19. The learned counsel for the respondent, Mr. V.K. Sawhney, relying upon the observations made by the Supreme Court in paragraph 3 of the judgment in Bhiki Lal's case, submitted that the application for amendment filed by the petitioner was not maintainable.

20. I am quite unable to accept the submissions made by the learned counsel for the respondent. The ratio laid down by the Supreme Court in Bhiki Lal's case would not, in any way affect the right of the petitioner for the amendment of the judgment and the decree.

21. In the case decided by the Andhra Pradesh High Court in "Emani Venkata Subba Rao Vs. Kanikicharla Nagabhushanam", AIR 1984 AP 352, the application for amendment was filed to include costs which was not awarded by the trial Judge. The Andhra Pradesh High Court held that in such an event, the proper remedy of the party was to prefer an appeal and not to file an application for amendment. This case does not at all help the respondent.

22. In the case decided by the Rajasthan High Court in Smt. Gulab Bai Vs. Ram Prakash", , the facts, as noticed by the Court, are as follows: The plaintiff, respondent before the High Court, filed a suit for recovery of Rs.3,600/- on the mortgagee. A preliminary decree was passed directing the defendant to pay the amount, and, in default, directing the sale of the mortgaged property. An application for passing final decree was passed and that was also ordered. A few months later, the plaintiff/judgment creditor filed an application for the amendment of the preliminary decree for the award of interest pendente lite and the future interest. That application was opposed by the judgment debtor as that was not competent under Section 152 CPC. The Rajasthan High Court took the view that once the decree was silent with reference to the future interest, the Court would be deemed to have refused interest. The Court posed the question, "the only point for decision is whether omission on the part of the court to give any direction in the preliminary decree regarding payment of interest from the date of institution of the suit and from the date of decree, can be said to be accidental slip or omission. The Court held that it cannot be said that the omission on the part of the court in granting interest pendente lite and future was accidental. The Court further expressed the view that what was done by the court might be erroneous. The remedy of the party was to file, an appeal and the application under Section 152 CPC was not competent. The facts of the instant case are entirely different from the case before the Rajasthan High Court.

23. In "On the death of Debeswar Sarma, Mrs. Swarna Sarma & Others Vs. Uttam Chandra Medhi" AIR 1968 Assam & Nagaland 66, The Assam High Court took the view that the omission by Civil Court to disposed of any issue cannot be referred to as accidental omission or slip which could be corrected under Section 152 CPC and the only remedy was to file an appeal by the party.

24. The learned counsel for the respondent, Mr. V.K. Sawhney, further submitted that after the decree was passed by the learned trial Judge, the respondent had made the payment in full and final settlement of the claims of the plaintiff/petitioner. When it is so, the Court had become functus officio, and, therefore, it was not permissible for the petitioner, in law, to apply for an amendment. The learned counsel relied on the judgment of the Madras High Court in " A. Palanivel Chettiar Vs. R. Elumalai", .

25. The facts in A.Palanivel's case, as noticed by the Court, are these. On the 19th of December, 1978, a money decree was passed. On the 19th of August, 1982, in execution application No.1507/82 full satisfaction of the decree was recorded. On the 21st of August, 1982, the decree holder filed an application for the amendment of the decree to incorporate the award of interest @ 9% p.a. from 29.5.1972 to 19.12.1978, and thereafter, @ 6% p.a., and also to include costs of Rs. 267/- . That was allowed by the trial court, which was challenged before the High Court in revision. The learned trial Judge had followed the judgment of the Patna High Court in "Shyamlal Bihar Vs. Girish Narain", . The argument on behalf of the judgment debtor before the High Court was, once the Court had recorded full satisfaction of the decree, the decree becomes extinct and the Court becomes functus officio and would not be competent to consider the application for amendment of the decree. The learned Judge observed.

"Once a decree gets fully satisfied and discharged, the decree becomes, extinct and dead so far as the court is concerned, and unless there is scope for resuscitating the same in accordance with law and it gets resuscitated as such, neither the party could seek nor the Court could indulge in any amendment of such a decree which has become non est in the eye of law. This appears to me to be the basic principle, which should govern the question of amendment of a decree when the decree has been wiped out by the full satisfaction and discharge of the same, where is the question of amending it? Amendment presupposes the existence of a decree, which is found to be incorrect or infirm or which is irreconcilable with the judgment and on those grounds, or on some other analogous ground, amendment is sought for. But when the decree as it stood has become extinct and dead in the eye of law by full satisfaction and discharge of the same, the Court will lack jurisdiction to order amendment of such a decree."

The learned Judge further observed:

"The question is not one of scope of the wide powers of court to order amendment. The question is as to when the power is available and is to be exercised. Courts are not vested with the powers to exercise them inexpediently leading to incongruous results."

The learned Judge held that the reopening of a decree which had become fully satisfied would lead to incongruous results.

26. The ratio of A. Palanivel's case laid down by the learned Judge is that the Court has to see in an application under Section 152 CPC, on the facts before it, whether that power could be exercised. That ratio would fully apply to the facts of the instant case. In my view, the decision of the Madras High Court in A. Palanivel's case does not render any assistance to the respondent.

27. The learned counsel for the respondent, Mr. V.K. Sawhney, submitted that the same view was taken by the Madras High Court earlier in "Munuswami Mudali & Others Vs. Jagannadha Reddi & Others" .

28. The learned counsel for the respondent Mr. V.K. Sawhney, submitted that no party can claim amendment of a decree as a matter of right and the Court has to exercise its discretion. The learned counsel referred to the judgment of the Kerala High Court in "Puthan Veettil Sankaran Nair Vs. Poomulli Manakkal Moopil Sthanam Parameswaran namboodiripad", .

29. Nobody can have any quarrel with the proposition. The question is, whether the lower court had exercised its discretion in accordance with settled principles.

30. Yet another argument by Mr. V.K. Sawhney, the learned counsel for the respondent, which is some what interesting, was that the learned Judge, who dealt with the application for amendment, could not have dealt with the matter because an amendment could be considered only by the Judge who passed the decree and the successor court, while considering the application for amendment, would have to be circumspect. The learned counsel referred to the judgment of the Calcutta High Court in "Nirendra Chandra Vs. Digendra Nath" AIR 1926 Calcutta 1100.

31. The facts, as noticed by the Calcutta High Court are:

"The facts of the case are as follows; The petitioner who has obtained this Rule instituted a suit in the Court of the Subordinate Judge of Cachar on the 27th of September, 1921 for the recovery of Rs. 4,882.10.8 against two persons, defendants Nos. 1 and 2. Defendant No. 2 did not appear Defendant No. 1 appeared and he stated that he and defendant No. 2 borrowed money from the plaintiff and he wrote the document. He, however, added that he was merely a surety and at the same time a written petition was put in, in which he stated that he was only liable as surety. On the 20th December, 1921 the learned Subordinate Judge Mr. G.D. Walker passed the following judgment:-

"Defendant No.1 examined, suit decreed on admission against defendant No.1 and ex parte against ex parte against defendant No. 2 both with costs."

On the 7th January, 1922 the decree was drawn up in accordance with the judgment, namely:

"that the suit be decreed with costs on admission against the defendant No.1 and ex parte against defendant No.2."

The petitioner proceeded to put this decree into execution against defendant No. 2 and realized the sum of Rs. 2,466 from the son and legal representative of the defendant No. 2 who had died in the meantime. He then put the decree in execution for the balance of the claim against the present opposite party, the son of defendant No.1 who had died in the meantime. In this execution proceeding, which was No.49 of 1924 the opposite party filed an objection stating that he would not be made liable till the defendant No. 2 failed to pay.

On the 28th of April, 1925 defendant No.1, the present opposite party made an application in the Court of the Subordinate Judge of Cachar for the amendment of the decree on the ground that the decree was not in accordance with the judgment. He seems to have contended that the expression "on admission meant "on admission that he was only a surety". This contention found favour with the learned Subordinate Judge Mr. Denneby. He held that it was clearly the intention of the Court who passed the judgment to give a decree against defendant No. 1 only if the amount were not recoverable from defendant No. 2. In this view of the matter he ordered the amendment of the decree. I may here note that this was not the same learned Judge who delivered the original Judgment and signed the original decree."

On the 28th April, 1925 the first defendant filed an application for amendment. The contention was that the expression on admission meant that he was only a surety. This was accepted by the learned Subordinate Judge who succeeded the learned Subordinate Judge who passed the decree. The learned Judge ordered the application for amendment considering the expression of 'on admission'. While dealing with this, the Calcutta High Court held:

"I do not think that the Subordinate Judge Mr. Denneby was entitled to read into the judgment of his predecessor words which were not there. The decree is clearly in conformity with the judgment and the learned Subordinate Judge Mr. Denneby had no Jurisdiction, therefore, to amend the decree. His order of the 3rd November, 1925, amending the decree under Sec. 151 must be set aside and the original decree restored. The Rule is made absolute in these terms."

32. The learned counsel for the respondent, Mr. V.K. Sawhney, referred to the judgment of the Orissa High Court in "Punjab National Bank Limited Vs. Udyog Silpa Pvt. Limited & Others", , and submitted that the lower court had exercised its discretion in paragraph 21 of the judgment in the instant case and that exercise cannot be said to be illegal.

33. The learned counsel for the respondent, Mr. V.K. Sawhney, referred to the judgment of the Supreme Court in Delhi Financial Corporation Vs. B.B. Behel", 1999 II AD (SC) 445, wherein the Supreme Court dealing with the claim of the appellant for compound interest, held that the learned trial Judge intended to grant only simple interest. This is not at all relevant for the purpose of present discussion.

34. For the foregoing reasons and the principles adumbrated above, the order of the learned Additional District Judge cannot be sustained. Accordingly, it is set aside.

35. The petitioner ought to have been vigilant and if soon after the passing of the decree in January, 1994, the application had been made, the respondent would have made the payment. The time taken by the court in deciding the issue cannot enable the petitioner to claim compound interest. Therefore, the claim of compound interest is restricted in the decree from the date of filing of the suit till 19.7.1994. The plaintiff shall be entitled to compound interest @ 15% p.a. from the date of filing of the suit till 19.7.1994 when the respondent paid the sum of Rs.1,38,803/-. The amendment application is ordered in the above terms.

36. The CRP stands disposed of.

37. There shall be no order as to costs.