ORDER
Avinash Somakant Bhate, J.
1. These two revisions are being disposed of by a common judgment as they arise out of the same judgment of the trial Court.
2. Suit O.S. No. 59 of 1958 was filed for accounts. A preliminary decree was passed on 14-11-1958. Against that an appeal was preferred which was dismissed on 16-11-1963. In Supreme Court also the appeal was dismissed on 14-9-1966. Thereafter, the plaintiff filed an application I.A. No. 51 of 1976 for passing of a final decree which was ultimately passed on 17-11-1977. Against this final decree the defendants preferred an appeal C.C.C.A. No. 78 of 1978, which was dismissed on 10-3-1987. The E.P. was filed in 1992 but was dismissed on 16-2-1994. Thereafter, E.P. 15 of 1994 was filed before the Executing Court for executing the decree against the judgment debtors.
3. The judgment debtors had contested the E.P. It was contended mat the E.P. was not maintainable as it was barred by limitation. Another point raised was that the amount which was deposited or paid by the judgment-debtors should first be appropriated towards principal amount and not towards interest.
4. The learned trial Judge by the impugned order accepted the contention of the judgment-debtors that the amounts which were deposited by the judgment-debtors should first be appropriated towards principal amount and not towards interest as was done by the decree-holder while calculating the amount due from the judgment debtors. However, on question of limitation, the learned Judge below answered against the judgment-debtors and found that the execution petition was well within the limitation from the date on which the appellate Court’s decree was passed.
5. The questions that have been agitated before this Court are also the same. It appears that the learned Court below was swayed by the decision in Punjab National Bank Delhi & etc. v. Premsagar Choudhary and Ors., , to hold in favour of the judgment-debtors that the payments made by them before filing of the execution petition by the decree-holder should be appropriated towards the principal amount and not towards the interest. The Himachal Pradesh High Court had taken a view that the amended provisions of Order 21 CPC gave such a right to the judgment-debtors because under Order 21 Rule (1)(5) CPC on any amount paid under Clause (b) of Sub-rule (1), the interest if any shall cease to run from the date of such payment. The Court took view the words “any payment” as used has to be given wider meaning and it means that every payment made would stop the interest to run from the date of such payment. Obviously this was directly opposite to what has been stated time and again by various Courts and particularly by the Supreme Court. The learned Judge below thought that the decision of the Supreme Court in Meghraj v. Bayabai, which unambiguously had reiterated the well known principle that payments of all decretal amount by the judgment debtor must first be appropriated towards interest and then to principal as per the normal rule. The Supreme Court gave all history as to how this rule has been in existence in Common Law also. The learned trial Judge was of the view that due to amendment in the CPC the judgment of the Supreme Court was now not effective. Obviously the learned Trial Judge misunderstood the amended provision and also did not understand the principles stated and reiterated in the Supreme Court judgment. In M. Mathai v. Hindustan Organic Chemicals Ltd., , the Supreme Court has followed the decision in Megraj’s case, , and has again reiterated the same principle. The Supreme Court has in fact stated that the result of amended rule in Order 21 CPC removes all doubts and the judgment debtor has not only to deposit the amount by stating as towards what part of dues he is depositing it but has also to send notice and see that it was duly served on the decree holder, with acknowledgment due. The principle has been incorporated in Indian Contract Act also apart from the fact that it is the Common Law principle. There is absolutely no doubt whatsoever that the normal rule is that any payments made by the judgment-debtor towards the decretal dues have first to be appropriated towards interest and then towards the principal if the amount deposited is in excess of the interest due at the point of time when payment was made.
6. The judgment-debtors have challenged by their revision the finding of the learned Trial Judge that the Execution petition was (not) barred by limitation. There is little merit in their revision. The admitted facts are that the decree of the Trial Court though passed on 17-11-1977 it was confirmed in appeal only on 10-3-1987. Thus the decree of the Trial Court merged in the decree of the Appellate Court on 10-3-1987. It is the final decree which ultimately becomes executable. The contention of the learned Advocate that the decree became executable from the date on which the Trial Court passed a decree because there was no stay granted by the Trial (sic. appellate) Court is also correct but that does not mean that it was the only decree which was executable in absence of stay. When that decree lost its existence due to merger in the Appellate Court’s decree on 10-3-1987, the decree-holder was entitled to file Execution Petition within the stipulated period from the date on which the ultimate executable decree was passed by the Appellate Court. It appears that the learned Trial Judge has relied upon the decision in P. Ramachandraiah v. D. Seshamma, 1978 (1) ALT 85 (NRC) = 1978 (2) An. W.R. 445 = 1978(2) APLJ 1. The said judgment highlights the very same principle. The learned Advocate for the revision petitioners (defendants)/judgment debtors brought to my notice the decision in Kali Prasad v. Bhagwat Prasad, for contending that if there is no stay for the execution of the decree passed by the Trial Court then the period of limitation starts on the date on which the Trial Court passed the decree. The facts of the cited case would show that there was no appeal against the decree which was to be executed. A separate suit was filed under Order 21 Rule 63 CPC which was decided and an appeal was preferred against that and no stay was granted to the execution of the amount decreed in the said appeal. It was in that context that the Patna High Court had observed that as there was no stay in the appeal nothing prohibited the decree-holder from proceeding further with his execution against the original judgment-debtor. Thus the said case is of no help whatsoever for the proposition sought to be advanced by the judgment-debtors.
7. The finding of the learned Trial Judge on the point of the E.P. being within limitation is therefore, correct and proper. However, the finding of the learned Trial Judge that the payments made by the judgment-debtors have to be appropriated towards principal amount or that the interest would cease on the date of such payment having been appropriated towards principal amount is not correct.
8. The C.R.P. No. 5318 of 1994 is therefore, allowed and C.R.J. No. 292 of 1995 is dismissed. The matter is sent back to the executing Court for proceeding with the Execution according to law. The calculation of the true amount for execution shall be done in accordance with the principles stated above. In the circumstances of the case, the parties are left to bear their own costs.