Page No.# 1/7 vs D.N. Construction Pvt. Ltd
2025 Latest Caselaw 4185 Gua

Gauhati High Court

Page No.# 1/7 vs D.N. Construction Pvt. Ltd on 18 March, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                              Page No.# 1/7

GAHC010259352014




                                                        2025:GAU-AS:3293

                         THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : CRP(IO)/45/2014

         THE STATE OF ASSAM and 3 ORS
         REPRESENTED BY THE COMMISSIONER and SECRETARY TO THE GOVT. OF
         ASSAM
         PWD BandNH DEPARTMENT
         DISPUR
         GHY-6

         2: THE CHIEF ENGINEER
         PWD NATIONAL HIGHWAY
         ASSAM
          CHANDMARI
          GHY-3

         3: THE SUPERINTENDING ENGINEER
         PWD
         N.H. CIRCLE
         DIBRUGARH

         4: THE EXECUTIVE ENGINEER
         PWD
         GUWAHATI
         N.H. DIVISION
         DIBRUGARH

          VERSUS

         D.N. CONSTRUCTION PVT. LTD.
         MORAN KHATKHATI
         P.O. MORAN
         DIST- DIBRUGARH
         ASSAM


          ------------
                                                                            Page No.# 2/7




          For the Appellant(s)           : Mr. D. Nath, Sr. Government Advocate

          For the Respondent(s)          : Mr. P. K. Khataniar, Advocate



                Date of Hearing          : 18.03.2025

                Date of Judgment         : 18.03.2025




                                 BEFORE
                  HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                          JUDGMENT AND ORDER (ORAL)

Heard Mr. D. Nath, the learned Senior Government appearing on behalf of the petitioners and Mr. P. K. Khataniar, the learned counsel appearing on behalf of the respondent.

2. This is an application filed under Article 227 of the Constitution challenging an order dated 21.05.2014 passed by the learned Civil Judge, Dibrugarh in Money Execution Case No.2/2011.

3. This Court has perused the impugned order dated 21.05.2014 whereby the learned Civil Judge, Dibrugarh i.e. the learned Executing Court in Money Execution Case No.2/2011 had issued the precept for the purpose of recovery of the amount to which the decree holder is entitled to.

4. This Court further takes note of that prior to that, there is also another order passed by the learned Executing Court i.e. the order dated 22.11.2013 Page No.# 3/7

wherein the learned Executing Court had further detailed the reasons as to why the precept is required to be issued. Challenging the impugned orders, the instant proceedings was filed in the year 2014 whereby the order dated 22.11.2013 and the order dated 21.05.2014 as well as the proceedings Money Execution Case No.02/2011 was stayed by this Court. The matter thereupon was not listed before this Court.

5. On 04.03.2025, when the matter was listed before this Court, this Court heard the matter at length and taking into account the judgment of the Constitution Bench of the Supreme Court in the case of Gurpreet Singh Vs. Union of India reported in (2006) 8 SCC 457, this Court asked both the

parties to place before this court their calculation as to how much amount the decree holder is entitled to and accordingly fixed the present proceedings on 11.03.2025.

6. On 11.03.2025, when the instant proceedings was taken up, the learned Sr. Government Advocate appearing on behalf of the petitioners i.e. the judgment debtors had placed before this Court a calculation which has been kept on record and marked with the letter "A". The decree holder i.e. the respondent herein had also placed before this Court a calculation which have been marked with the letter "X". From the calculation so provided by the judgment debtors, it is seen that an amount of Rs.3,18,394/-, the decree holder is entitled to. On the other hand, the calculations so provided by the decree holder i.e. the respondent shows that the decree holder as on 11.03.2025 is entitled to an amount of Rs.32,78,843/-.

7. Now, let this Court take note of as to whether the calculation submitted by the petitioners as well as the respondent is correct as per the judgment Page No.# 4/7

of the Constitution Bench of the Supreme Court in the case of Gurpreet Singh (supra). Paragraph No.26 of the said judgment is relevant and the

same is reproduced herein under:

"26. Thus, in cases of execution of money decrees or award-decrees, or rather, decrees other than mortgage decrees, interest ceases to run on the amount deposited, to the extent of the deposit. It is true that if the amount falls short, the decree-holder may be entitled to apply the rule of appropriation by appropriating the amount first towards the interest, then towards the costs and then towards the principal amount due under the decree. But the fact remains that to the extent of the deposit, no further interest is payable thereon to the decree-holder and there is no question of the decree-holder claiming a reappropriation when it is found that more amounts are due to him and the same is also deposited by the judgment-debtor. In other words, the scheme does not contemplate a reopening of the satisfaction to the extent it has occurred by the deposit. No further interest would run on the sum appropriated towards the principal."

8. This Court further finds it relevant to take note of another judgment of the Supreme Court in the case of Bharat Heavy Electricals Limited Vs. R.S. Avtar Singh and Company reported in (2013) 1 SCC 243 wherein the Supreme

Court laid down the principles as to how the appropriation should be made towards a decreetal amount. Paragraph 31 and its sub-paragraphs being relevant are reproduced herein under.

"31. From what has been stated in the said decision, the following principles emerge:

31.1. The general rule of appropriation towards a decretal amount was that such an amount was to be adjusted strictly in accordance with the directions contained in the decree and in the absence of such directions adjustments be made firstly towards payment of interest and costs and thereafter towards payment of the principal Page No.# 5/7

amount subject, of course, to any agreement between the parties.

31.2. The legislative intent in enacting sub-rules (4) and (5) is a clear pointer that interest should cease to run on the deposit made by the judgment-debtor and notice given or on the amount being tendered outside the court in the manner provided in Order 21 Rule 1(1)(b).

31.3. If the payment made by the judgment-debtor falls short of the decreed amount, the decree-holder will be entitled to apply the general rule of appropriation by appropriating the amount deposited towards the interest, then towards costs and finally towards the principal amount due under the decree.

31.4. Thereafter, no further interest would run on the sum appropriated towards the principal. In other words if a part of the principal amount has been paid along with interest due thereon as on the date of issuance of notice of deposit interest on that part of the principal sum will cease to run thereafter.

31.5. In cases where there is a shortfall in deposit of the principal amount, the decree-holder would be entitled to adjust interest and costs first and the balance towards the principal and beyond that the decree-holder cannot seek to reopen the entire transaction and proceed to recalculate the interest on the whole of the principal amount and seek for reappropriation."

9. From the above two judgments, it is clear that a general rule of appropriation towards a decreetal amount was to be adjusted strictly in accordance with the directions contained in the decree and in absence of such directions, adjustment be made firstly towards payment of interest and then the costs and thereafter towards payment of principal amount subject, of course, to any agreement between the parties. It is further seen that if the payment made by the judgment debtor falls short of the decreetal amount, the decree holder would be entitled to apply the general rule of Page No.# 6/7

appropriation by appropriating the amount deposited towards interest and then towards cost and finally towards the principal due under the decree. It would also be clear from the above exposition of law that once some portion of the principal amount have been appropriated as regards that portion of the principal there would not be accrual of any interest.

10. In the backdrop of the above, this Court also perused the judgment and decree passed in Money Suit No.18/98 wherein the learned Trial Court decreed the suit for an amount of Rs.10,12,308/-with cost. It was further mentioned that the defendant shall pay the deducted amount to the plaintiff within three months, failing which the defendant shall be liable to pay interest @18% per annum from the date of filing of the suit till the date of recovery of the amount. The said decree so passed do not in any manner stipulate the manner of appropriation and consequently the general rule of appropriation as have been held by the Constitution Bench of the Supreme Court in the case of Gurpreet Singh (Supra) as well as the judgment of the Supreme Court in the case of Bharat Heavy Electricals Limited (supra) would apply.

11. This Court has duly perused the statement which is kept on record and marked with the letter "A" submitted by the petitioners/judgment debtors as well as the statement submitted by the respondent who is the decree holder kept on record and marked with the letter "X". The manner in which the appropriation have been shown in the document kept on record and marked with the letter "X" appears to be in consonance with the judgment of the Constitution Bench in the case of Gurpreet Singh (supra) as well as the judgment of the Supreme Court in the case of Bharat Heavy Electricals Page No.# 7/7

Limited (supra). Consequently, in the opinion of this Court, as on the date

i.e. 11.03.2025, the decree holder is entitled to an amount of Rs.32,78,843/-.

12. In view of the fact that the decree holder is entitled to the said amount, the learned Executing Court was therefore justified in issuance of the precept by the impugned orders dated 22.11.2013 and 21.05.2014. In that view of the matter, this Court finds no ground to interfere with the orders dated 22.11.2013 and 21.05.2014 passed in Money Execution Case No.2/2011.

13. Taking into account that there was a stay of the proceedings in Money Execution Case No.2/2011 passed by this Court, the said stay order is vacated and the parties are directed to appear before the learned Executing Court on 28.04.2025. Thereupon, the learned Executing Court shall proceed with the execution case in the manner envisage under law.

14. The records which were called for be forthwith returned by the Registry of this Court to the learned Executing Court so that the said records are available before the learned Executing Court on the next date so fixed by this Court hereinabove.

15. This Court further for the sake of clarity, makes the document which was kept on record and marked with the letter "X" as a part of the instant order. The Registry shall issue the certified copy of the instant judgment along with the said document marked with the letter "X".

JUDGE Comparing Assistant