1986 PLP 1143 (CLC)

Sd/‑(Amanullah Soomro), IVth Senior Civil Judge/A.S.J., Karachi 19‑12‑1974" A decree was prepared reproducing the compromise and it is necessary to mention here that in this decree was included an amount of Rs.977 as costs, although the order reproduced above had decreed the suit "with no order as to costs, decree accordingly." Now comes the stage of friction between the parties. On 10‑2‑1976 an application was moved to the effect that at the time of passing the order this Hon'ble Court was pleased to decree the suit with no order as to costs through over sight, therefore, the decree does not award interest and costs to the plaintiff. It was prayed that the Hon'ble Court be pleased to order that the decree may please be amended and the plaintiff may be awarded interest and costs. On this application an order was passed on 25‑3‑1976. The relevant part of the order is "it appears that the parties have agreed to costs in their compromise application and perhaps inadvertently my learned predecessor had awarded no cost in spite of compromise. The plaintiff now wants that the earlier order to the effect of awarding cost be revised and I feel that it is inadvertent slip of the pen and hence I review this order to the effect of the cost only. I order that the cost should also be awarded to the plaintiff and so I order accordingly". On 7‑7‑1976 an Execution Application No.12/1976 was filed by the decree‑holder. In this application the total amount claimed under the decree was stated to be Rs.24,832.22. This amount was made up as follows: ‑ Original amount

Rs.15,479.22 Cost.

Rs. 977.00 Interest @ 9% p.a. from 2‑7‑1970 till 30‑6‑1976 .

Rs. 8,376.00 Total: Rs.24,832.22. Objections were filed by the Judgment Debtor for charging the interest and by an order dated 14‑2‑1977 these objections were dismissed and 31 the order passed needs to be reproduced in extenso to high light the controversy involved in this revision: "Heard the counsel of the parties, and perused the Execution 18 Application and the objection filed thereon. I would make it clear that suit was decreed on compromise entered into between the parties, where the J . D . had admitted the claim of the D . H The D.H. has also claimed interest in his plaint. As according to the terms of the compromise the J.D. has to pay interest to D . H . also as admitted by him in the compromise application. Hence I see no force in the objections filed by the J.D. Issue writ of attachment as prayed. Costs. The application and the objections filed by the J.D. are dismissed." A civil miscellaneous appeal was filed against this order by the Judgment Debtor which was disposed of by the Ist Additional District Judge. The learned Ist Additional District Judge has dismissed the appeal upholding the order dated 14‑2‑1977. Under this order also interest has been allowed on the ground that the plaint contained a relief being relief (b) claiming interest while the application for compromise had stated as follows:‑ "The defendant admits the claim of the plaintiff and the suit be dismissed with costs". In view of the learned Judge when relief claimed in the plaint is read with the words "the defendant admits the claim of the plaintiff" in the compromise application it would show that the compromise covered the granting of this relief as well. Specific mention of interest in the order was unintentional omission by the learned Judge recording the compromise by order dated 19‑12‑1974. This revision has been filed to challenge the finding by the two Courts below and the contention raised is that the interest was not awarded and it has wrongly been awarded to the Decree‑holder. The counsel contends that this would amount to changing the decree or in other words to allow the execution in excess to the amount awarded in the decree to the extent of Rs.8,

376. There can be two possible approaches to examine the situation; (1) whether the subsequent orders are passed in Execution application or by way of review of the order dated 19‑12‑1974. A careful scrutiny of these orders and the application would show that the Courts are attempting to interpret the order and the words of the compromise application. In their opinion the suit was decreed with interest and it was not necessary to specifically mention this fact in the order and it is permissible now to clarify this position. In my humble opinion this is not a correct view. A plaintiff may raise any number of claims in the plaint and by the time the case reaches the stage of judgment it is not necessary that all the claims should be decreed. In the present case the plaintiff had admitted the claim raised in the plaint. So far as question of awarding interest is concerned, it is a distinguishable claim from the main relief available to the plaintiff and under section 34 of C.P.C'. the Court has wide discretion to award partly or totally refuse to allow interest to the plaintiff. This, section may be reproduced for ready reference. "

34. Interest.‑‑(1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest 1 at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, wite further interest at such rate as the Court deems reasonable the aggregate sum so adjudged from the date of the decree the date of payment or to such earlier data as the Court think fit. (2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore, shall not; lie." Subsection (2) of section 34, C.P.C. further strengthens this opinion that interest is a purely discretionary relief. Although this subsection applies to a stage subsequent to the passing of the decree, but it would be a harmonious interpretation of the first part of the section if the same interpretation is placed on subsection (1) as well; namely that when Court has omitted to award interest in a decree or the decree is silent with respect to payment of interest, it shall be deemed' to have refused to award such interest: Judicial power is to be consciously exercised. A successor cannot interpret an order awarding additional reliefs and attributing them to the predecessor. This cannot be termed as interpretation of previous order. It would amount to substituting the views for the views of the predecessor. Looking from this angle the award of interest would cause offence to the provisions of section 34, C.P.C. and the two orders awarding interest cannot be sustained in law. The revision is, therefore, allowed Decree to be amended accordingly, and reframed in terms of the order dated 19‑12‑1974. A . A . Revision allowed.