CRP 77/2011 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY The order dated 9.2.2011 passed by the learned Civil Judge, Karimganj in Money Execution Case No. 4/2006 sustaining the computation made by the Executio n Assistant-cum-Sheristadar of his establishment quantifying an amount of Rs. 6, 50,187.06 as the decretal amount payable in terms of the judgment and decree dat ed 20.9.2005 passed in Money Suit No. 24/88 is under assailment in the present p roceeding. Interference therewith is sought for in the exercise of this Court’s power under Article 227 of the Constitution of India. 2. I have heard Mr J Roy, learned counsel for the petitioners and M r IA Talukdar, learned counsel for the opposite party. 3. The run up of facts to the initiation of the instant proceeding needs to be sketched in brief. The aforementioned suit was instituted in the Cou rt of the Assistant District Judge, Karimganj by the opposite party Nos. 1, 1(a) , 1(b) and 1(c) for recovery of an amount of Rs. 3,54,876.70 together with inter est against the petitioners. The suit was decreed ex-parte on 20.2.91 whereby an amount of Rs. 3,54,876.70 with costs of Rs. 7,128.73 together with interest at the rate of 12.5% till realization of the amount was decreed. Being aggrieved, t he petitioners preferred an appeal before this Court being First Appeal No. 36/9 1 which was allowed on 6.11.95 by setting aside the judgment and decree dated 20 .2.91 and remanding the suit for expeditious disposal by the learned Trial Court in accordance with law after affording reasonable opportunities to the parties. During the pendency of the aforementioned appeal the petitioners had deposited an amount of Rs. 6,70,085.40 with the learned Trial Court on 22.8.95 as the mand atory security deposit. Thereafter, the said amount was withdrawn by the opposit e party Nos. 1, 1(a), 1(b) and 1(c). As this fact was brought to the notice of t his Court, it in its order dated 6.11.95 referred to hereinabove directed the op posite party Nos. 1, 1(a), 1(b) and 1(c) to redeposit the amount received by the m before the learned Trial Court or to furnish a bank guarantee to that effect w ithin two months from the date of the order i.e. 6.11.95. 4. After remand the suit was decreed again by the judgment and decr ee dated 20.9.2005 for an amount of Rs. 1,72,284.28 with interest at the rate of 12% per annum as mentioned therein. According to the petitioners, though meanwh ile the opposite party Nos. 1, 1(a), 1(b) and 1(c) had withdrawn the amount of R s. 6,70,085.40, they launched the aforesaid execution proceeding against them fo r recovery of the decreetal amount of Rs. 1,72,284.28 together with interest. Vi de order dated 25.1.2008 passed in the Money Execution case the learned Executin g Court called for a report from the Execution Assistant-cum-Sheristadar disclos ing the amount payable by the petitioners/ judgment-debtors in terms of the judg ment and decree dated 20.9.2005. Calculations were done and in terms of the repo rt dated 28.7.2008 an amount of Rs. 3,53,116.00 was shown to be payable under th e decree. In the said report it was inter alia mentioned that as meanwhile the p etitioners/ judgment-debtors had deposited Rs. 6,70,085.40 in Court on 22.8.95, interest on the bill amount at the rate of 12% per annum as decreed was realizab le upto the date of such deposit i.e. 22.8.95 which was worked out to be Rs. 1,5 3,844.19. Interest on the security deposit as decreed was also calculated upto 2 2.8.95 to be Rs. 13,012.78. As the matter stood at that, the Execution Assistant -cum- Sheristadar submitted a second report on 15.6.2010, this time indicating that an amount of Rs. 6,50,187.06 was due from the petitioners under the decree. In arriving at this figure, the Execution Assistant included an amount of Rs. 4 ,23,431.70 by way of interest on the total amount upto 31.5.2010. Interest on th e security deposit was calculated to be Rs. 40,496.33 as on 31.5.2010. Visibly i n making these calculations the Execution Assistant-cum-Sheristadar left out of consideration the deposit of the amount of Rs. 6,70,085.40. Being aggrieved by this arithmetic, the petitioners filed a written objection before the Executing Court on 8.7.2010 praying for cancellation of the second report/ calculation and for acceptance of the figure noted in the first report dated 28.7.2008. As the Executing Court by the impugned order dated 9.2.2011 accepted the second report, being dissatisfied therewith the petitioners seek redress. 5. The opposite party in their joint affidavit-in-opposition while generally admitting the factual narration of the petitioners asserted that the a mount of Rs. 6,70,085.40 received by one of them was re-deposited with the learn ed Trial Court on 21.6.2003. They, however, in unison endorsed the calculations made by the Execution Assistant-cum-Sheristadar in his report dated 15.6.2010 an d, consequently, the order impugned. 6. Mr Roy has emphatically argued that the calculations made on 15. 6.2010 besides being uncalled for in the face of erroneous computation made on 2 8.7.2008 is evidently wrong and that, therefore, the impugned order is liable to be interfered with. According to Mr Roy, the petitioners having admittedly depo sited an amount of Rs. 6,70,085.40 before the Trial Court on 22.8.95, they by no means could be saddled with the interest on the bill amount for the period ther eafter and that, therefore, the computation made on 15.6.2010 being erroneous on the face of the records, the impugned order is unsustainable in law and on fact s and ought to be set aside in the interest of justice. 7. Mr Talukdar, in reply, has insisted that as the impugned order d oes not suffer from any infirmity in law, no interference therewith in the exerc ise of this Court’s extra ordinary jurisdiction is called for. When queried by t his Court, Mr Talukdar, however, has admitted the deposit of the amount of Rs. 6 ,70,085.40 by the petitioners before the Trial Court on 22.8.95 and the withdraw al thereof by the opposite party Nos. 1, 1(a), 1(b) and 1(c) on 6.11.95. He did not deny as well that this amount since 22.8.95 had not been taken back by the p etitioners. 8. A plain reading of the report dated 28.7.2008 inter alia reveals that the interest on the bill amount had been calculated from the dates of the concerned bills upto 22.8.95. The statement accompanying the said calculation cl early reveals that the petitioners had deposited Rs. 6,70,085.40 against which t he decreetal amount of Rs. 3,53,116.00 was adjustable. This report discloses as well that the aforementioned amount of Rs. 6,70,085.40 was deposited by the peti tioners on 22.8.95 and, thus, interest on the bill amount at the rate of 12% per annum had been calculated from the date of each bill upto the date of deposit t hereof i.e. 22.8.95. 9. In sharp contrast to the above, the interest on the bill amount, as the report dated 15.6.2010 would reveal, was calculated at the rate of 12% p er annum from the date of each bill till 31.5.2010 without, however, giving the benefit to the deposit of Rs. 6,70,085.40 that had been deposited by the petitio ners admittedly on 22.8.95. No reason is cited in the report for this apparent d eparture from the earlier mode of computation of the decretal amount. The learne d Executing Court as well has not dwelt upon this aspect of the matter in uphold ing the calculations made as per the report dated 15.6.2010. As the amount of Rs . 6,70,085.40 had admittedly been deposited by the petitioners with the Trial Co urt following the ex-parte decree dated 6.11.95, may be as a deposit to prefer a n appeal before this Court, and as the said amount had been withdrawn by the opp osite party Nos. 1, 1(a), 1(b) and 1(c) to be re-deposited on 21.6.2003 as averr ed by them in their affidavit, it passes one’s comprehension as to how the petit ioners could still be burdened with the interest on the bill amount from the res pective dates of the bills till 31.5.2010 in continuum. The calculation of the d ecretal amount at least to this extent, in the opinion of this Court, would resu lt in undue enrichment of the opposite party Nos. 1, 1(a), 1(b) and 1(c) as the amount of Rs. 6,70,085.40 had been at their disposal from 6.11.95 to 21.6.2003 a s admitted by them. The learned Executing Court seems to have totally overlooked this aspect of the matter while accepting the second report dated 15.6.2010. Th e petitioners having made the deposit of Rs. 6,70,085.40, in the considered opin ion of this Court, they ought not to be held liable for the interest for the per iod on and from the date of deposit. In this view of the matter, the calculation made in the report dated 15.6.2010 as well as the order dated 9.2.2011 impugned herein cannot be sustained and are, thus, interfered with. 10. The petition is allowed. 11. The learned Executing Court would cause a fresh computation to b e made of the decretal amount realizable from the petitioners in accordance with law. No costs.