SAIDUZZAMAN SIDDIQUI, J.---The above direct appeal under. Article 185(2)(d) of the Constitution of Islamic Republic of Pakistan, is filed by the appellants in this Court against the order of a learned Judge in Chambers of Lahore High Court dated 16-5-1993.
2. The circumstances leading to the filing of the above appeal are as follows. Respondent's suit against the appellants was decreed by the High Court for Rs.9,97,672 as against the claim of Rs.36,75,000 without allowing any interest on the decretal amount during pendency of the suit and after the date of decree till payment of the amount, in R.F.A. No.195 of 1988. Both appellants and respondent filed appeals against the judgment and decree of High Court being Appeals Nos.224 and 225 of 1988 before this Court. By judgment. Dated 12-1-1991, this Court dismissed the appeal filed by appellants but partly accepted the appeal of respondent allowing interest as follows:-- "We would, therefore, allow interest on the decretal amount passed by the High Court at the then bank rate of 8% per annum from the date of the filing of the suit to the date of passing of the decree by the High Court and thereafter at 10% from the date till payment."
3. In Review Petition No.48 of 1991 filed against the judgment of this Court dated 12-1-1991, award of interest on the sum of Rs.9;97,672.30 at the rate of 8 % per annum from the date of institution of the suit .Till the passing of decree and thereafter at the rate of 10% per annum till the payment of amount was questioned. The Review petition was dismissed by this Court on 8-1-1992 as under:-- "This petition for review is directed against the judgment of this Court dated 12-1-1991 passed in Civil Appeal No.225 of 1988 preferred by the respondents whereby the appeal was partly accepted and interest allowed on the amount of decree (i.e. Rs.9,97,672.30) at the then bank rate of 8 % per annum from the date of filing of the suit to the date of passing of the decree by the High Court and thereafter at 10 % from the date till payment was allowed. The petitioners herein by this petition for leave have questioned the award of interest in the above terms.
We have heard learned counsel for both the parties at great length and find no ground for revision of our judgment. However, in the connected review petition, the decree of the High Court for a sum of Rs-.9,97,672.30 has been reduced to Rs.7,47,672.30 and, accordingly, the interest shall be payable on the sum now decreed at the bank rate of 8% per annum from the date of filing of the suit to the date of passing of the decree by this Court (i.e. Till 8-1-1992) and thereafter at 10% from the said date till payment of discharge of the decree. "
4. It appears that respondent/decree-holder applied for execution of decree after disposal of R.F.A.
195/1988 against the appellants: However, in view of the order dated 8-1-1992, passed by this Court in Review Petition No.48/1991, the execution application was amended. The Executing Court attached certain properties of appellants and also issued warrant of arrest against them after amendment of execution application. The order of the Executing Court was challenged in Civil Revision No. 1799 of 1992 before the High Court which 'vas disposed of as follows:-- "12. I hold, therefore, that the judgment-debtor is liable under the decree of the Supreme Court to pay Rs.7,47,672.30 as the principal sum, interest on that sum at the rate of 8% per annum from 5-4- 1976 to 8-1-1992 and on the aggregate sum so calculated, interest at the rate of 10% per annum from 9-1-1992 to the date of the payment.
13. As regards the second question I think it will be fair to the parties to, allow the payment of the decreed amount so calculated in the following instalments. The first six instalments will be paid at the rate of Rs.70,000 per mensem; and the remaining instalments will be paid at the rate of Rs.80,000 per mensem. Indeed the last instalment if it is less than Rs.80,000 will also be paid accordingly. The judgment-debtor shall pay the first instalment of Rs.70,000 on 15th of June, 1993 before the Executing Court and the remaining instalments also before the Executing Court on the 15th of each succeeding month.
14. If the judgment-debtor fails to pay any instalment in accordance with this order, the whole amount then due would become immediately payable; in that case the attached property of the judgment-debtor will become immediately liable to sale and the judgment-debtor will also become liable to arrest. "
The appellants/judgment-debtor have questioned the above order of learned Judge in Chambers in the above direct appeal.
5. The learned counsel for the respondent/decree-holder has raised a preliminary objection regarding maintainability of the above appeal, besides contesting the same on merits. It will be appropriate to deal with the preliminary objection of the respondent/decree-holder before considering the case on merits.
It is contended by the reamed counsel for the respondent/decree-holder that the execution application filed by the respondent is still pending before the Executing Court and no final order has been passed therein so far. It is accordingly, contended that Civil Revision Application filed by the appellants before the High Court was not directed against any final order of Executing Court and therefore, the impugned order passed by the learned Judge in Chambers, disposing of the Civil Revision Application could not be treated as a final order against which appeal could be filed before this Court under Article 185(2)(d) of the Constitution.
6. The learned counsel for the appellants/judgment-debtor on the other hand contended that the order of the learned Judge in Chambers finally determined the liability of appellants/judgment- debtor under the decree and therefore, the Executing Court has no jurisdiction now to go into this question except to enforce the liability against the appellants as determined by the impugned order. It is contended that the subject of Revision being over Rs.50,000 and the order of Executing Court having being varied in the sense that the liability of appellants under the decree which was not determined by the Executing Court, now stands finally determined by the High Court, a direct appeal under Article 185(2)(d) of the Constitution is maintainable before this Court.
Clause(d) of Article 185(2) of the Constitution reads as follows:-- "(d) if the amount or value of the subject-matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of Majlis-e-Shoora (Parliament) and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or"
7. It is not disputed that the subject-matter of execution was for more than Rs.50,000. It is also not in dispute that the Executing Court had issued .Warrant of attachment of property and arrest of appellants in execution of decree, which was challenged in Civil Revision Application before the High Court by the appellants/judgment-debtor. As to what amount the judgment debtor had paid or was liable to pay to the decree-holder under the decree, was a question to be determined exclusively by the Executing Court under section 47 of the Code of Civil Procedure, as these relate to execution, discharge or satisfaction of decree. No doubt, before the Executing Court could finally determine these questions, the appellants/judgment-debtor took the matter before the High Court in a Civil Revision Application, and the effect of the order passed by the learned Judge in Chambers is that the liability of the appellants under the decree stands finally determined under the impugned order leaving no room for the Executing Court to go into these questions. In these circumstances, it cannot be argued that the Executing Court has yet to pass a final order in the execution proceedings, determining the liability of appellants/ judgment- debtor under the decree.
In these circumstances, in our opinion, the direct appeal is competent.
8. On merits, the learned counsel for the appellants contended that after the order passed by this Court in Review Petition No.48 of 1991, the liability of the appellants/ judgment-debtor was limited to the decretal amount of Rs.7,47,672.30 on which they had to pay interest at the rate of 8% per annum until payment of the whole of the decretal amount.
9. The learned counsel for the respondent/decree-holder on the other hand contends that the interest payable to appellants on the decretal amount to be calculated in terms of section 34 of the C.P.C., meaning thereby, that the interest on the decretal amount from the date of filing of the suit till the date of decree is to be calculated at the rate of 8 % and thereafter, at the rate of 10 % per annum interest is to be calculated on the aggregate amount, namely, the decretal amount plus the interest, until full discharge of the decree.
10. It cannot be disputed that grant of interest pendente lite and after passing of the decree in a money suit, is discretionary with the Court. It is true that under section 34, C.P.C. It is laid down that the interest after the date of the decree may be allowed by the Court at such rates as the Court may deem reasonable on the aggregate sum so adjudged but this does not mean that the Court is bound to grant interest on the aggregate sum so adjudged in the suit. Subsection (2) of section 34, C.P.C. Clearly provides that where the decree is silent with regard to the payment of further interest on such aggregate sum, it shall be deemed to have been refused by the Court and for that a separate suit is also barred. From the order passed by this Court in Civil Appeals Nos.224 and 225 of 1988, it does not appear that this Court while granting interest on the decretal amount had allowed interest after the date of decree on the aggregate amount namely, the principal amount plus the interest after the date of decree in the suit. The Court only allowed interest at the rate of 8 % per annum on the decretal amount from the date of the filing of the suit until decree was passed in the case and thereafter, the interest was awarded at 10 % from the date of decree till payment was made of the decretal amount. In any case, the order passed by this Court in Civil Review No.48 of 1991 further clarified the position when it ordered that the amount of interest at the rate of 8 % per annum was to be paid on the reduced amount of decree namely Rs.7,47,672.30 at the rate of 8% per annum from the date of filing of the suit till the date of passing of the decree i.e. 8-1-1992 and thereafter, at 10% from the said date till the decree is satisfied in full. Mere fact that this Court while passing decree in Civil Appeals Nos.224 and 225 of 1988 mentioned that the value of the money had depreciated on account of inflation and therefore, even allowing interest at the bank rate, was not sufficient to compensate the depreciation in value of the loan, could not lead to the conclusion that the Court intended to award interest after the date of the decree in the suit on the aggregate amount namely, the amount decreed in favour of the respondent plus the interest which had become due until the date of payment.
11. We, accordingly, allow the appeal, set aside the order of the learned Judge in Chambers and hold that the amount of interest at the rate of 8 % per annum from the date of institution of the suit till passing of the decree is to be calculated on the reduced amount of Rs.7,47,672.30 and thereafter, the interestis to be calculated at the rate of 10% per annum from 8-1-1992 on the above amount till the entire payment is made under the decree. The learned counsel for the appellants contended that the entire amount has been paid while this position is not admitted by the learned counsel for the respondent. In these circumstances, the case is remitted to the Executing Court with the direction to calculate the interest on the amount of Rs.7,47,672.30 in the light of above observations and to determine whether interest so calculated has been paid fully in discharge of the decree by the appellants to the respondent. We will, however, make no order as to costs in the circumstances of the case.