CR No.61 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.61 of 2010 Date of decision : 08.12.2010 Khinda Trading Company & Other ....Petitioners Versus Phuman Singh ....Respondent COURAM: HON'BLE MR. JUSTICE L.N.MITTAL Present: Mr. Padam Jain, Advocate for the petitioners. Mr. Rajvir Wasu, Advocate for the respondent. * * * * L. N. MITTAL (ORAL) Judgment debtors have filed the instant revision petition under article 227 of the Constitution of India to assail order dated 23.11.2009 passed by the executing court i.e. learned Additional Civil Judge (Senior Division), Sultanpur Lodhi. Suit filed by respondent-plaintiff/decree holder was decreed for recovery of Rs.63,163/- (principal amount) along with interest thereon @ 24% per annum w.e.f. 01.01.1997 till 25.01.1999 the date of filing suit and @ 12 % per annum w.e.f. 26.01.1999 onwards, along with costs of the suit. Decree holder-respondent earlier filed execution petition bearing Miscellaneous No.73 of 2003. In that execution petition, judgment debtors moved application for stay on the ground that they had preferred appeal against judgment and decree of the trial court which was sought to be executed. Executing court vide order dated 22.12.2003 Annexure P-1 ordered the execution to be stayed subject to deposit of principal amount of Rs.63,163/- by the judgment debtors within 15 days from the date of the order. The execution petition was adjourned to 19.01.2004. Judgment CR No.61 of 2010 -2- debtors accordingly deposited the principal amount of Rs.63,163/- on 06.01.2004 in the executing court. Thereafter the execution petition was consigned to records on 19.01.2004. First appeal preferred by judgment debtors against judgment and decree of the trial court stands dismissed. Thereafter decree holder respondent filed instant execution petition bearing miscellaneous No.31-A of 2008. Dispute arose about appropriation of the deposited amount of Rs.63,163/-. Judgment debtors claimed that the same has to be appropriated towards the principal amount whereas decree holder/respondent pleaded that the same has to be adjusted towards interest and cost and then if any amount is left, towards principal amount. Learned executing court vide impugned order dated 23.11.2009 accepted the stand of the decree holder and rejected the objections of judgment debtors. Feeling aggrieved, judgment debtors have filed the instant revision petition. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioners contended that the amount of Rs.63163/- was deposited as principal amount pursuant to order dated 22.12.2003 Annexure P-1 passed by the executing Court in the previous execution petition and, therefore, the said amount has to be appropriated accordingly towards principal decretal amount. On the other hand, learned counsel for respondent/decree holder relying on judgment of Supreme Court in M/s. Industrial Credit and Development Syndicate Vs. Smt. Smithaben H. Patel, 1999(2) RCR (Civil) 45, contended that the amount has to be adjusted firstly towards interest and CR No.61 of 2010 -3- costs and then towards principal amount and, therefore, there is no illegality in the impugned order of the executing court. I have carefully considered the rival contentions. Perusal of order dated 22.12.2003 Annexure P-1 reveals that stay of execution was ordered by the executing court by the said order subject to deposit of 'principal amount' of Rs.63163/- by the judgment debtors and accordingly judgment debtors deposited the said amount. Since it was specific direction of the executing court to deposit the said amount as 'principal amount', there is no option left except to adjust or appropriate the said amount towards 'principal amount'. If the order of the executing court had not been to the effect of deposit of 'principal amount', then judgment in the case of Industrial Credit Development Syndicate (supra) would have been applicable and the amount deposited would have been appropriated towards interest and costs first and then towards principal amount. However, in the instant case, as per order of the executing court, the impugned deposit was of the principal decretal amount and, therefore, it has to be appropriated accordingly. It may be added that the decree holder never challenged order dated 22.12.2003 Annexure P-1 of the executing court. Consequently, since deposit of Rs.63163/- was made pursuant to the said stay order as 'principal decretal amount', the same has to be appropriated accordingly. From the aforesaid discussion, it emerges that impugned order dated 23.11.2009 passed by the executing court is illegal and unsustanable and suffers from jurisdictional error. Accordingly, instant revision petition is allowed and impugned order dated 23.11.2009 passed by the executing court is set aside and objections preferred by the judgment debtors/petitioners are allowed, holding that amount of Rs.63163/- CR No.61 of 2010 -4- deposited by the judgment debtors on 06.01.2004 stands appropriated towards principal decretal amount and only amount of cost and interest on the said principal amount till 06.01.2004 remained recoverable from the judgment debtors. Learned counsel for the petitioners states that pursuant to interim order dated 08.01.2010 of this Court, the petitioners have already deposited Rs.74069.50 in the executing court on 18.01.2010. The amount shall be appropriated as per aforesaid finding towards interest and costs and the balance amount if any shall be recoverable from the judgment debtors. (L. N. MITTAL) JUDGE 08.12.2010 'raj'