IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 2601 of 2008 Date of decision : January 14, 2010 Uttam Singh Yadav and another ....Petitioners versus M/s Life Insurance Corporation of India ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Kulbhushan Sharma, Advocate, for the petitioners Mr. BR Mahajan, Advocate, for the respondent L.N. Mittal, J. (Oral) Aggrieved by order dated 2.2.2008 passed by the executing court [Additional Civil Judge (Senior Division), Faridabad] petitioners Uttam Singh Yadav and his wife Santra Devi have filed the instant revision petition under section 115 of the Code of Civil Procedure (in short, CPC). Respondent Life Insurance Corporation of India filed suit for recovery of Rs 2,69,169.30 against the petitioners with pendente lite interest and future interest by sale of mortgaged property and also for personal decree against the petitioners. Preliminary decree was passed vide judgment dated 27.2.2001 whereby suit was decreed against petitioner no. 1 only and was dismissed against petitioner no. 2. Thereafter final decree was passed vide order dated 12.3.2005. Respondent filed execution petition wherein the petitioners filed objections alleging that interest @ 17% Civil Revision No. 2601 of 2008 -2- per annum awarded by the trial court is in contravention of section 34 CPC and therefore, respondent-decree holder is not entitled to interest at the said rate i.e. at rate of more than 6% per annum as stipulated under section 34 CPC. The said objections have been dismissed by the executing court by passing impugned order dated 2.2.2008. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioners vehemently contended that even executing court can examine if the decree has been passed by the court in violation of section 34 CPC. Reliance in support of this contention has been placed on three judgments of this Court namely Jagdish Chander versus Punjab National Bank and others, (1994-1) Punjab Law Reporter, 211, Krishan Lal versus State Bank of Patiala and others, (1990-1) Punjab Law Reporter, 132 and Mehar Chand versus Tulsi Ram, 1996 PLJ 288. I have carefully considered the aforesaid contention. On first blush the contention appears to be very attractive and forceful but on proper scrutiny the contention cannot be accepted. Firstly the question of rate of interest as per section 34 CPC was raised in the suit itself and has been specifically adjudicated upon in judgment dated 27.2.2001, Annexure P/1 in paragraph nos. 11 to 17 and it has been specifically held that the plaintiff/respondent is entitled to interest at the agreed rate of 17% per annum. The said adjudication has attained finality. Consequently, the said issue cannot be reopened in execution petition. It is correct that if the decree is in violation of section 34 CPC, then according to the judgments Civil Revision No. 2601 of 2008 -3- cited by learned counsel for the petitioners mentioned hereinabove, executing court can examine the issue of contravention of section 34 CPC. However, it is not so when the issue has already been decided after proper adjudication in the judgment on which the decree sought to be executed is based. In the instant case, issue now sought to be raised by the petitioners in the execution proceedings has already been adjudicated specifically in judgment Annexure P/1 dated 27.2.2001 and the said finding has attained finality and therefore, could not be reopened in the execution proceedings. In addition to the aforesaid since it was a mortgage suit for recovery of amount by sale of mortgaged property, provision of Order 34 Rule 11 CPC is applicable, which stipulates awarding of pendente lite and future interest also at the agreed rate. Consequently, in the instant case section 34 CPC is not applicable and Order 34 Rule 11 CPC is applicable and interest at the agreed rate has rightly been awarded by the trial court and by the executing court. For the reasons recorded hereinabove, I find no merit in the instant revision petition which is accordingly dismissed. ( L.N. Mittal ) January 14, 2010 Judge 'tiwana'