1997 PLP 634 (CLC)

Abdul Hayee Mansoor Ahmad for Appellant. Yousif Kazmi for Respondent. Date of hearing: 13th December, 1994 The dispute in this appeal relates to the calculation of the decretal amount. Originally the decree emerging from the order of the Supreme Court dated 24‑11‑1991; provided that respondent herein will recover interest at the rate of 12% on the amount of Rs.7,40,828.45 from the date of institution of the suit till the date of recovery of decretal amount. On review this decree was modified by the Supreme Court and the modified judgment provided that the decree‑holder will be entitled to recover a sum of U.S. $ 1,55,574.34 with interest at the rate of 12% per annum from the date of institution till actual payment. It was also provided that the recovery in Pakistani currency will be made at the exchange rate of Rs.10 per U.S. Dollar.

2. The execution of the original decree was launched and during the course of proceedings the judgment‑debtor paid to the decree‑holder in the Court a sum of Rs.6,98,836.00 on 15‑1‑1992 and a further sum of Rs.10,55,492.90 on 21‑4‑1992. As a result of the modified decree the judgment‑debtor claims that an additional sum of Rs.19,28,803.53, is payable by him while the decree‑holder claims that about a sum of more than Rs.21,00,000 is due. The difference between the parties runs to about Rs.2,94,397.00. Vide order dated 4‑5‑1993, the trial Court directed the payment of the admitted amount viz. Rs.19,28,803.53 and observed that the dispute about the remaining amount may be cleared through either appointment of commission or any other way. It is admitted that this amount has also been deposited/paid. Thereafter, the judgment‑debtor filed an application for appointment of an expert to work out the amount while the decree‑holder contested the same and sought recovery of a further sum of Rs.2,94,397.00. Vide order dated 20‑3‑1994, the executing Court dismissed the petition for appointing a local commission to work out the amount and directed the payment of Rs.2,94,397 as due on 18‑9‑1993 to the decree‑holder. Feeling aggrieved the judgment‑debtor has preferred this appeal with the prayer that the calculation of the trial Court is not correct and that it is proper that the same be done by an expert.

3. It has been objected by the respondent that this appeal is not f maintainable inasmuch as the impugned order was passed on an application filed by the judgment‑debtor under Order XXVI, Rule 10 and no appeal is provided against an order passed on the same. This objection has no force. Under section 104, C.P.C. appeal is provided from an order passed under section 47, C.P.C. It cannot and has not been contested that the impugned order does not fall under section 47, C.P.C. The objection is overruled.

4. After hearing the learned counsel at some length I feel that the question of calculation gets complicated on account of partial payments made on 15‑1‑1992 and 21‑4‑1992 towards the decretal amount. As noted above, the decree provides for payment of interest up to the date of actual realization. No problem would arise if the amount is worked out on a given date and the whole of it is paid on that date. It is obvious that the decree‑holder will not be entitled to charge interest on the amount already received on 15‑1‑1992 and 21‑4‑1992. The interest will have to be calculated keeping this in view. I find that it would be appropriate and in the interest of the parties that the actual calculation is referred to some expert like Chartered Accountant or a banker or some such person.

5. For what has been stated above this appeal is allowed with no order as to costs. The trial Court is directed to appoint an expert to work out the actual amount due from the judgment‑debtor to the decree‑holder. The costs of the expert shall be paid equally by the two parties. A.A./P‑127/L Appeal allowed.