Allowed

The Catholic Syrian Bank Limited, represented by its v. Pamidimarri Narayana and Sons, Guntur Represented by its

Telangana HC7 Jul 2011CRP/5529/2005

Case brief

AI extract

What is this about?

This revision petition challenged a lower court order granting relief to judgment-debtors claiming payment of arrears. The High Court set aside the order, directing the lower court to determine fresh liability considering subsequent payments and the propriety of appropriating them towards continuing interest rather than the execution claim.

What did the court decide?

Civil Revision Petition allowed; lower Court order set aside; matter remanded to lower Court with directions to determine liability afresh within three months.

The Catholic Syrian Bank Limited, represented by… — Execution and Attachment | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CIVIL REVISION PETITION No.5529 OF 2005

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JUDGMENT:

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1. The revision is filed against the order of the 1^st Additional Senior Civil Judge, Guntur in E.P.No.101 of 1990 in O.S.No. 373 of 1986.

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2. The execution petition was filed for recovery of Rs.68,884.55 ps. being the amount due under the preliminary decree dated 17.06.1987 and a final decree was passed on 18.08.1988. The decretal amount was Rs.65,035.65 ps and after calculation of the interest at 18% up to 26.04.1990 the execution petition was filed for recovery of Rs.89,874.30 ps. and the earlier payments were deducted and the balance is the amount shown in the execution petition.

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3. The judgment-debtors filed a counter contending that they have already paid the amount by way of part payments and the last payment was made on 22.11.1999 to a tune of Rs.10,000/-. After considering the material on record, the 1^st Additional Senior Civil Judge, Guntur, found that the amount was already paid and there is no amount payable to the decree-holder.

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4. The revision is filed contending that the lower Court failed to accept the calculation memo and also denying the balance. A copy of the calculation memo showing the accounts up to 06.11.2004 was filed by the decree-holder when the matter is said to have been remanded in C.R.P.No.5029 of 2001 dated 24.01.2003. As can be seen from the said calculation memo, a sum of Rs.1,40,585.54 ps. is shown as due to the decree-holder. The last payment i.e., Rs.1,000/- said to have been effected on 22.11.1999. Evidently, the execution petition was filed in 1990. The judgment-debtors filed a calculation memo showing that till 22.11.1999 a sum of Rs.2,07,463.03 ps. was paid. According

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to the calculation of the judgment-debtors, the amount as per the decree was Rs.65,035.65 ps and the interest from 17.09.1987 to 22.11.1999 is Rs.1,42,427.38 ps. The statement filed by the decreeholder shows that the interest was periodically calculated on the principal sum and the payments were given credit to the total sum after adding interest. Whereas the judgment-debtors have calculated interest from the date of decree till the date of execution petition and claims that the amount was paid.

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5. Therefore, the question will be as to whether the method of appropriation of the payments made by the decree-holder is correct or not or whether the method of payment pleaded by the judgmentdebtors is to be accepted?

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6. POINT:

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Even after filing of the execution petition as per the calculation memo, several amounts have been paid and interest was calculated from 29.09.1988 to 03.09.1992 to a tune of Rs.42,704.18 ps. by the decree-holder. Therefore, it is quite clear the decree-holder has appropriated the payments as a continuing loan transaction and not as payments towards the execution petition amount. The only question will be as to whether in the execution petition the amounts as claimed was paid or not. But, however, the decree-holder claims money even subsequent to the decree and appropriated the same. However, the order of the lower Court does not disclose the same. The lower Court has to determine as to whether the payments made after the institution of the execution proceedings shall go towards the payment of the execution petition claim or whether the decree-holder can continue a running account and appropriate the amount towards interest and claim the balance. Therefore, the order of the lower Court is set aside and the lower Court is directed to determine afresh the liability keeping

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in view of the filing of the execution petition and the payments made subsequently and further to determine as to whether the decree-holder can appropriate the same for subsequent interest also. Point is answered accordingly.

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7. In the result, Civil Revision Petition is allowed by setting aside the judgment of the lower Court and the matter is remanded to the lower Court and the lower Court is directed to dispose of the matter within three months after giving notice to the both parties. No costs.

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________________________ N.R.L.NAGESWARA RAO,J

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Date:07.07.2011 INL

The Catholic Syrian Bank Limited, represented by its v. Pamidimarri Narayana and Sons, Guntur Represented by its

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The Catholic Syrian Bank Limited, represented by its v. Pamidimarri Narayana and Sons, Guntur Represented by its

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