S.P Goyal, J.:— The respondents filed a suit for recovery of Rs. 55,832.87 on account of principal amount and interest, together with future intrrest at the rate of 4½% over and above the Reserve Bank of India rate, with monthly restes from the date of the filing of the suit till its realisation, and a decree was, accordingly, passed in its favour. In execution of the decree, some immovable and movable properties of the judgment-debtors were sold, resulting in the recovery of Rs. 128076.00
2. The present petition under Section 47 of the Code of Civil Procedure (hereinafter referred to as the Code) was filed by the judgment-debtors for setting aside the auction and in the alternative for determining the amount due to the decree-holder. Although many grounds were urged in the objection petition, but two of them which survive for decision of this petition are:—
1. That from the date of decree, interest could not be allowed at more than 6% per annum and that too on the principal amount, and
2. That no compound interest could be allowed.
3. The Executing Court rejected both the objections, being of the view that it could not to go behind the decree. Aggrieved thereby, the judgment-debtors have come up in this revision.
4. The provisions of section 34 of the Code are not procedural jn nature and in fact confer a jurisdiction on the Court, which, but for that provision would not be there. So was held by the Supreme Court in Seth Thawardas Pherumal v. Union Of India . AIR 1955 SC 468., and by a Division Bench of this Court in State of Punjab v. Surrinder Nath Goel . AIR 1960 Punj 623.. It is, therefore, obvious that the Court has the jurisdiction to grant interest after the filing of the suit only in accordance with the provisions of section 34 of the Code and any order made in contravention thereof would be without jurisdiction. Once it is held that any judgment or decree passed in contravention of section 34 of the Code would be without jurisdiction, it would be open to challenge even in execution proceedings, being a nullity and void decree. A similar view expressed by a Division Bench of Orissa High Court in V. Radreenaryan Murty Raju v. Epari Venuqopalam . I.L.R 1979 1 Cuttack 577. and P.D Desai, C.J, in Laxmi Furniture and Saw Mills, Simla v. Himachal Pradesh Financial Corporation, Simla . AIR 1985 HP 108..
5. The trial. Court for its view that the Executing Court could not go behind the decree, relied oa two Supreme Court decisions in Topan Mal Chhota Mal v. Kuno Mal Ganga Ram . AIR 1960 SC 388., Vesu Dev Dhanji Bhai Modi v. Raja Bhai Abdul Rehman . 1970 1 SCC 670, but none of them has any bearing on the present, case. In both these decisions, orders passed under the Rent Control Acts were found to be within jurisdiction and so it was held that the Executing Court could not go behind the decree. Similarly, the two decisions relied upon by the learned counsel for respondent in Smt. Kaushalya Devi v. K.L Ban Sal . 1969 1 SCC 59 and Bahadur Singh v. Muni Subrat Dass . 1969 2 S.C.R 432., were rendered on different fact and as such provided no support to his contention. In Vasu Dev Dhanji Bhai Modi's case (supra), it was held that if the question regarding the jurisdiction of the Court depended upon the investigation of facts, the Execution Court would have no jurisdiction to entertain such an objection. The decision in Bahadur Singh's case (supra) rather negatives the contention of the learned counsel for the respondent, in as much as the decree for ejectment passed in contravention of Section 13(1) of the Delhi and Ajmer Rent Control Act, 1952, was held to be without jurisdiction and a nullity. It was only with respect to the objection to the validity of the award that the Executing Court was held to be incompetent to entertain an objection once it was made rule of the Court and a decree passed in accordance therewith. The Executing Court, therefore, wholly went wrong in rejecting the objections of the judgment-debtors by relying on the above-noted two decisions of the Supreme Court, and thereby illegally refused to exercise jurisdiction vested in it.
6. On merits, the learned counsel for the respondent could not urge any argument against the objections raised that the Court could neither grant interest at the rate of more than 6% on the Principal amount nor could it allow compound interest. This petition is, consequently allowed and the two objection? noticed above are sustained. The case is remanded to the Executing Court for determining the amount due to the decree-holders in accordance with the rule laid down above and to pass appropriate orders. No costs.
R.M.S
Petition allowed.