' The respondent-Bank brought. a suit for recovery of Rs.4,11,109 against the appellant which suit was decreed in the following terms:-- "Since the defendant admits his liability and is willing and ready to repay the loan, therefore, his request for instalments is accepted. The defendant is directed to repay the loan in equal quarterly instalments within a period of 2 years of the passing of this judgment. The defendant is allowed remission of mark-up for one year. Liquidated damages cannot be granted. In case of default the property mortgaged with the plaintiff shall be put to public sale to realize the decretal amount."
2. Subsequently in execution proceedings the appellant moved an application stating that the respondent-Bank is illegally and unlawfully claiming and charging the mark-up over the aforesaid amount which had not been awarded to the respondent under the decree. This objection has been rejected by the learned Court below. Hence, this appeal.
3. Learned counsel for the appellant contends that according to the portion of the judgment reproduced above and the decree-sheet appended alongwith the appeal, it is nowhere stated that the future mark-up either from the date of institution of the suit till realization of the amount, was awarded to the respondent whereas it is necessary that such decree should provide for mark- up in view of section 15 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. Confronted with the above, learned counsel for the respondent has not been able to show from the judgment or decree if the mark-up after the institution of the suit till realization of the amount was awarded to the respondent under the decree, though he has stated that the appellant voluntarily had deposited the mark-up amount and resultantly, is not entitled to claim refund of the same.
4. We are afraid, this contention has no force, as in order to save his property from auction which was ordered pursuant to the judgment and decree itself, if a stay order was not granted by the Court in appeal or by the executing Court and the appellant had deposited the amount voluntarily, which would not tantamount to acceptance of the payment of the future mark-up which is not provided by the decree. Resultantly, this appeal is accepted. The impugned order is set aside, the mark-up amounting to Rs.2,68,000 deposited by the appellant with the respondent-Bank is directed to be refunded in execution, satisfaction and discharge of the decree.