IN THE HIGH COURT OF PUNJAB AND HARYAN AT CHANDIGARH CR No.6377 of 2010 Date of decision:02.09.2011 M/s Travel Star Hotel India Ltd. ...............Petitioner v S.K.Trehan ................Respondent Coram: Hon'ble Mr.Justice Jaswant Singh Present: Mr.Sumeet Mahajan, Senior Advocate with Mr.Sham Lal Bhalla,Advocate for the petitioner/JD Ms.Upinder Kaur Bedi,Advocate for the respondent/DH Jaswant Singh,J. Petitioner/JD has filed the instant revision petition under Article 227 of the Constitution assailing the order dated 31.5.2010 (P5) passed by learned Civil Judge (Junior Division) Ludhiana whereby its application under Section 47 read with Section 151 CPC was dismissed. It is apparent from the record that respondent/decree holder filed a suit for recovery of Rs.6,60,000/-(Rs.5,00,000/- +Rs.1,60,000/-) alleging therein that the petitioner/JD had entered into an agreement to sell dated 3.4.2001with the respondent/ DH regarding sale of land measuring 10B-17B-0B for a total sale consideration of CR No.6377 of 2010 2 Rs.1,55,00,000/-. The target date for execution of the sale deed was fixed on or before 6.6.2001. It was further alleged that the petitioner/JD committed breach of agreement by selling part of the land to one Jai Karan, at a higher rate, whereafter respondent/DH demanded the refund of earnest money amont of Rs.5,00,000/- with interest from the petitioner. On petitioner's refusal to do so, respondent/DH filed the suit for recovery on 3.12.2003. In the said suit the petitioner/JD was proceeded against ex parte on 19.4.2004 and finally ex parte judgment and decree dated 7.12.2004 (P1) was passed against it and the respondent/DH was held entitled to refund of Rs.6,60,000/- alongwith future interest @ 12% per annum from the date of filing of the suit till realization of the entire decretal amount. Respondent/DH sought execution of the aforesaid judgment and decree dated 7.12.2004 by filing execution petition dated 1.12.2004. In the execution proceedings petitioner/JD moved an application dated 9.2.2010 under Section 47 read with Section 151 CPC stating therein that as per decree sheet there was no mention that the transaction between the parties was a commercial one and as such decree to the extent of granting future interest @ 12% on Rs.6,60,000/- from the date of decree till realization be declared as without jurisdiction and as such nullity and the same could not be recovered by execution from the petitioner/JD by attachment and sale of its property. Respondent/DH filed reply to the said application,inter alia, stating therein that the judgment and decree has been passed by the Court of competent jurisdiction and as such the CR No.6377 of 2010 3 Executing Court could not go beyond the decree. It was also the stand of the respondent/DH that mere non-mentioning of the transaction being commercial did not render the granting of interest clause as invalid. After hearing both sides, the learned Executing Court vide impugned order dated 31.5.2010 dismissed the aforesaid application of the petitioner/JD on the ground that in the ex parte judgment and decree there was no finding that the transaction was non-commercial and the Executing Court could not go beyond the decree. Hence the present revision petition. Learned counsel for the JD/petitioner has argued that the transaction of an agreement of sale in the present case in the absence of any material on record cannot be, by any stretch of imagination/reasoning, construed as a transaction of commercial nature and thus keeping in view the provisions of Explanation II to sub section(1) of Section 34 of Code of Civil Procedure, the ex parte decree dated 7.12.2004 granting future interest beyond 6% per annum would be a nullity and void to that extent and thus not executable. In support of his arguments he has cited judgments of this Court reported as State of Haryana v. D,C.M. Hissar, 2001(1)RCR (Civil) 58, Gurdip Singh and other v. Bank of India, 2009(2) RCR (Civil) 461; Siri Chand and another v. Central Bank of India,Yamunanagar, District Ambala and another, 1988(1)PLR 473; Mohan Singh v. Jarnail Singh 2004(3)RCR (Civil) 752. CR No.6377 of 2010 4 Per contra, the counsel for the respondent/DH has argued that the learned Executing Court has rightly dismissed the objection of the JD/petitioner in respect of recovery of the amount calculated at the rate of 12% future interest i.e. from the date of decree till its realization as it is a settled law that the Executing Court cannot go beyond the decree and the remedy, if any, available to the JD was to go in appeal against the award of interest at the said rate. After hearing the learned counsel for the parties and perusing the pleadings, I find that the plea raised on behalf of the petitioner/JD deserves to be accepted. It cannot be disputed from the reading of the cited case law (relying on earlier Supreme Court judgments) that the general principle that Executing Court cannot go beyond the decree admits one exception that is the decree which is a nullity/void decree is not executable to that extent and such an objection can be entertained in execution proceedings or under Article 227 of the Constitution. It is also an admitted position that there is no finding recorded that the transaction of an agreement of sale of agricultural land between the parties was of a commercial nature. In such absence no presumption can be drawn that such a transaction would be of a commercial nature. This Court in para 14 of the cited judgment in Mohan Singh's case (supra) has already held that such a transaction cannot be categorized as of commercial nature. Thus viewed, in view of the statutory provisions of sub section (1) of Section 34 of Code of Civil Procedure prohibiting award of future interest at a CR No.6377 of 2010 5 rate over and above 6%, the objection of the JD/petitioner for restricting the award of future interest @ 6% is liable to be accepted. In view of the above, the present revision petition is allowed, the impugned order dated 31.5.2010 (P5) passed by the learned Executing Court is set aside and it is held that the decree holder is entitled to future interest @ 6% per annum on Rs.6,60,000/- from the date of decree till realization. 02.09.2011 (Jaswant Singh) joshi Judge