Kallan Singh And Others Decree-Holders v. Jagan Prasad Judgment-Debtor .

1. This appeal arises out of proceedings in execution of a decree passed in 1911. The decree was for Rs. 20,200 with proportionate costs and the Court also gave the plaintiffs future interest, that is, interest from the date of suit at the rate of six per cent, per annum. The first question for decision is whether the Court allowed interest on the costs awarded. It appears to me that the decree read by itself is plain enough. The expression “sud agenda” is applicable to the principal sum decreed, and not to the sum awarded as costs, and if there is any doubt as to the meaning of the decree, it is set at rest by a reference to the judgment which makes the meaning quite plain. In my opinion the decree-holders were not entitled to interest on the amount of costs awarded. It appears that in 1912 an application was made to execute the decree and a report was put up which showed that a sum of Rs. 8,500 odd remained due. In November, 1912, some property was sold for the sum of Rs. 8,500, or deducting the sale commission, Rs. 8,479. Soon after the sale the judgment-debtor applied to the Court for refund of Rs. 125, saying that the decree-holders had been over-paid. It does not appear how he proposed to make out this, and the Court ultimately decided that the decree-holders had not been over paid. By the present application for execution the decree-holders seek to recover Rs. 110-3-0, as balance of the amount of the decree, Rs. 5-3-6, interest on the same from the date of the sale above-mentioned and Rs. 178-1-0, interest on the sum of Rs. 8,479, total Rs. 293-7-6. The judgment-debtor objected, saying that if accounts were taken it would be found that the decree-holders had been overpaid. On this occasion for the first time in the history of the case the judgment-debtor pointed out that all along interest had been calculated on the sum awarded as costs. According to my construction of the decree the decree-holders were not entitled to this interest.

2. But it is contended that it is not open to 1 he judgment-debtor to raise the question at this stage of the suit, but that he ought to have raised the question long ago and in particular he ought to have raised it in March, 1913, when he alleged that the decree-holders had been over paid. In fact it is contended that the matter is now res judicata against him, because he might and ought on that occasion to have raised the question which he has now raised. It has been held in several cases that a matter once decided by a Court executing a decree cannot be re-opened at a subsequent stage of the proceedings; but I am not aware that it has been held that a judgment-debtor who puts forward objections in the execution department must put forward all possible objections once and for all, and that if he does not do so, matters which he has omitted must be treated as res judicata against him even if he was not aware of them. In the present case there has certainly been no decision on the question now raised and in the absence of authority I am not prepared to hold that the matter is res judicata against the judgment-debtor, because he had a previous opportunity of raising the question but did not do so. If, as I hold, interest ought not to have been allowed on the sum awarded as costs, and the judgment-debtor is entitled to raise objection at this stage, the decree-holders are certainly not entitled to the sum of Rs. 110-3-0, or to interest thereon. In any case they are not entitled to the sum of Rs. 178-1-0. They purchased the property themselves and, therefore, they paid no money into Court at all, and even if they had paid money into Court they would not have been entitled to interest on the sum paid in by them. I am, therefore, of opinion that the Court below was right in allowing judgment-debtor's objection. I do not understand the Court below to have held that the judgment-debtor is entitled to a refund of any particular amount. All that it did was to allow his objections and to dismiss the application for execution. This appeal, fails and is dismissed with costs.

3. Appeal dismissed.