P L D 1952 Dacca 349 (PLP)

AFZAL, J.

‑This appeal by the decree‑holders is directed against the decision of the District Judge of Sylhet, dated the 21st April, 1947, in Miscellaneous Appeal No. 92 of 1946 con firming that of the Subordinate Judge, First Court, Sylhet, dated the 14th. June, 1946, in Title Execution Case No. 68 of 1945. The facts may be briefly stated as follows :‑On 28th November 1932 the appellant decree‑holders, a Co‑operative Bank, obtained an award from the Registrar of the Co operative Societies against the judgment‑debtors (respondents) in respect of their dues under a mortgage loan. The award directed the payment of future interest on the principal sum at the rate of 10 per cent, per annum till the date of realisa tion of the dues. On 12th March 1941 the decree‑holders on the basis of the award which is executable as a decree of the Civil Court filed an execution case being Title Execution Case No. 22 of 1941 in the Court of the Subordinate Judge, Sylhet, for executing the aforesaid award against the judgment debtors. After the sale‑proclamation was issued and the date of sale was fixed the judgment‑debtors on payment of certain amount in Court obtained a few adjournments of the case. As the Court refused to grant adjournment beyond the date finally fixed for sale, namely, the 20th November, 1944, the judgment debtors deposited Rs. 1,695‑2 being the balance of entire amount for which the sale‑proclamation was issued. On 21st November, 1941 the judgment‑debtors filed a petition under section 47 of the Code of Civil Procedure in Miscellaneous Case No. 47 of 1941 stating, inter alia, that the payment made by them before the date of filing of the Title Execution Case No. 22 of 1941 had not been credited by the decree‑holders. The Subordinate Judge, who was dealing with the said applica tion under section 47; Civil Procedure Code in deciding the issue as to what amount the decree‑holders were entitled, calculated the payment made by the judgment‑debtors. On 9th December, 1944 the Court found that out of Rs, 1,695‑2‑0 deposited by the judgment‑debtors in Title Execution Case No. 22 they were entitled to get a refund of Rs. 119‑0‑

9. On 9th December 1944 the decree‑holders filed a petition stating that they did not get subsequent interest under the decree and so the Execution Case No. 22 should be dismissed on part satisfaction. This application was directed to be put up for orders on 14th December 1944 in presence of the Pleaders of both the parties, In the meantime the Execution Case No. 22/41 which was pending was thus dismissed on satisfaction. Thereafter the present Execution Case No. 68 of 1945 for realisation of the interest that was payable to the decree‑holders under the decree was started. On 13th January, 1946 the judgment‑debtors filed a petition of objection under section 47 of the Code of Civil Procedure, stating that the decree was fully satisfied, and that the decree‑holders could not get anything more than what they have got in previous Execution Case No. 22 of 1941. The learned Subordinate Judge allowed the petition of the judgment‑debtors and the order of the Subordinate judge was affirmed on appeal by the learned District Judge. Hence this appeal. Mr. Sabita Ranjan Pal appearing for the appellants con tends that the appellants are entitled to interest of certain period which could not be included in Execution Case No. 22 of 1941 and, therefore, the decree‑holders have filed afresh Execution Case No. 68 of 1945. He argues that the appel lant's right for claiming interest cannot be taken away as that right remains intact and the interest can be realised by fresh execution. Mr. B. K. Das appearing for the respondents has urged that there is no substance in this contention. It is to be ascertained he contends, whether the petition in Execution Case No. 68 of 1945 is maintainable in view of the orders, dated 9th December, 1944 and 14th December 1944 when the point in issue decided was the amount due by the judgment -debtors to the decree‑holders. It appears that while passing the order on 14th December, 1944 the Court found that the question, whether the debt has been fully satisfied or not, was to be determined when the next execution case was filed, but at the same time the Court observed :‑"Let the present case be dismissed on satisfac tion", which cannot but mean that the Court considered that subsequent execution case was not maintainable and that the whole debt was satisfied. The last portion of the order, dated 14th December, 1944, "let the present case be dismissed on satisfaction" confirms what the Court decided on 9th Decefi ber 1944, namely, that nothing remained due after calculation and adjustment. Since 20th November 1944 was the date finally fixed for sale, it was the duty of the decree‑holders to have brought it to the notice of the Court as to what amount was due to them by way of interest. It seems to me that the decree‑holders were not vigilant enough but as soon as the order was passed on 9th December, 1944 in Title Execution Case No. 22 of 1941 the decree‑holders rushed with an appli cation claiming further interest. It was within the knowledge of the decree‑holders that certain amount was deposited in Court in Execution Case No. 22 and if that was not sufficient to cover their dues the decree‑holders could have easily agita ted and pressed their claim for future interest at the time when the Court went into the details of the claim for future interest. Instead of this they depended upon what was stated in the sale‑proclamation and did not even put forward their claim for future interest at the time when the Court went into the details of the claim and finally adjusted the dues and passed order on 9th December, 1944. This circumstance in itself amounts to waiver, negligence and latches on the part of the decree‑holders and they cannot now take any advantage of their own wrong. If the decree‑holders sleep over their right they have only to blame themselves for their negligence. Mr. Pal then contends that under Order XXI, Rule 66, Clause (d) of the Code of Civil Procedure the sale is to be ordered on the basis of the claim stated in the execution petition and the decree‑holders are entitled to the interest subsequently accrued as interest is calculated up to the date on which sale‑proclamation is put in and not beyond that date. Here he says that the inclusion of interest after the date of application for execution is possible only with leave of the Court or by amending the original petition for execution. In support of his contention he has relied on the case of Basanta Kumar Choudhury and another v. Roy Baiku tha Nath Chakra varty and another 36 C W N 404, where it was held that when interest is awarded by a decree, the Court has power under Order XXI, Rule 66, Civil Procedure Code to insert in the sale‑proclamation, the amount of interest as calculated up to the date of sale although the decree‑holder's application men tions the amount as calculated up to the date of his application and no specific claim is made for future interest and a sale held for such interest is valid. In the present case it appears that the decree‑holders did not include interest after the date of their application in Execution Case No. 22 of 1941, nor did they. apply for leave of the Court or amend their original petition for execution. Besides, the case reported in 36 C W N 404 (Supra) is distinguishable inasmuch as in that case it appears that it was a diligent decree‑holder who was taking all possible steps in the prosecution of his execution case which was going on. In my opinion, the case in 36 C W N is not a case for the authority that if the decree‑holder omits to claim any amount in an execution proceeding he can claim it in subsequent execution proceeding. The above case of Basanta Kumar Choudhury (Supra) has no application to the facts of the present case and the contention of Mr. Pal has, therefore, no substance. Mr. Pal has also relied on the decision in the case of Marundanayagam Pillai v. Manichavasakam Chettiar 49 C W N 292 (P C), which enunciated the duty of the Court to act under Order XXI, Rule 66, Civil Procedure Code. This case also does not help Mr. Pal, as in this case. it seems, that neither the appellant nor the respondent had the knowledge of the encumbrance which was the main point involved but in the present case the decree‑holders knew fully well as to what they were to get by way of interest. But it was through their oversight that they forgot to incorporate that amount in the sale‑proclamation. So the crux of the case depends on the knowledge of the parties as to the facts at the material date and there can be no doubt as the knowledge of the amount which was due to the appellants by way of interest and if the decree‑holders were not careful enough to incor porate that amount in Execution Case No. 22 of 1941 then there has undoubtedly been a waiver on their part. It has been observed in the above case reported in 49 C W N 292 (P C) (Supra) by their Lordships :‑ The efficacy of a plea of waiver by the appellant depends on the ability of the respondent to prove that the appellant knew the true facts from which an intention on his hart to waive his right to object to a misstatement in the proclama tion can be inferred. In the present case it is apparent that the case of the decree -holders was that due to oversight on their part that interest of certa4n period was not included in the sale‑proclamation in Execution Case No. 22 of 1941. Therefore, the decree- holders were guilty of negligence because it was the duty of the decree‑holders to have helped the Court in ascerta ining the actual amount due to them so that the same might have been stated in the sale proclamation. The subsequent order 14th December 1944 to the following effect: Let the present case be dismissed on satisfaction, in fact implied that there was a full satisfaction of the amount which the decree‑holders were entitled to realise by executing the decree. It further seems that the decree‑holders did not even choose to get this order set aside in appeal, as, it cannot be urged that it was not an appealable order. The question, therefore, of taking account of future interest in subsequent execution proceeding cannot now be agitated. This also in my opinion, appears to be the trend of the decision of both the Courts below. Therefore, it seems that it was due to sheer negligence of the part of the decree‑holders that the claim up to the date of sale was not put down in the sale‑proclamation. In fact this negligence amounts to waiver. In the case of Panaji Girdharlal v. Ratanchand Hajarimal Marwadi, A I R 1933 Bom. 364, it was held that if a person having a right to recover a certain sum under a decree asks the Court to enforce that decree for a less sum; he must be taken to waive his right to levy execution for the balance. It was further held in that case that it was not permissible to levy execution of a money decree in different stages or piecemeal. These observations are applicable on all fours to the case now before me where the question of waiver has to be deter mined with regard to the whole of the proceeding in the case and particularly with reference to the order made by the Court on 9th December, 1944 which decided the amount due to the decree‑holders, Further, it is evident that the existence of an intent to waive depends on the facts of a particular case and the best evidence of intention is to be found in this in the conduct of the decree‑holders themselves. In my opinion, both the Courts below were right in observing in such circum stances that the decree‑holders must suffer for their own negligence in not including interest in the sale‑proclamation of Execution Case No.

22. The negligence or oversight of the decree‑holders in not including the interest in the sale‑proclamation operates as an estoppel against them from reagitating the same question over again. The result, therefore, is that this appeal is dismissed with costs and the decision of the learned District Judge affirmed. Leave to appeal under clause 15 of the Letters Patent prayed for is refused. A. H. Appeal dismissed.