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CASE NO.: Appeal (civil)  1780 of 2005

PETITIONER: Ramesh Chand Daga

RESPONDENT: Rameshwari Bai

DATE OF JUDGMENT: 16/03/2005

BENCH: B.P. Singh & S.B. Sinha

JUDGMENT: J U D G M E N T

[Arising out of S.L.P. (Civil) No.8339 of 2004]

S.B. SINHA, J :

       Leave granted.

       Interpretation of the judgment and order dated 20.1.2000 passed by  the High Court of Madhya Pradesh falls for consideration in this appeal  which arises out of a judgment and order dated 12.3.2004 passed in C.R.  No.110 of 2004, whereby and whereunder the revision application filed by  the Appellant herein from an order dated  11.9.2003 passed by the First  Additional District Judge, Ratlam in  execution of a transferred decree from  Family Court, Bombay,  was dismissed.  

LEGAL PROCEEDINGS BETWEEN THE PARTIES :         An application for judicial separation, maintenance and return of  ornaments/property etc. was filed by the Respondent  against the Appellant   herein before the Family Court at Bombay purported to be in terms of  Section 10 of the Hindu Marriage Act, 1955.  An alternative prayer was  made therein to the effect that if the ornaments  were not returned, a decree  for a sum of Rs.3,25,655/- together with interest thereon from the date of  filing of the application may be passed.  In the said proceeding, the  Appellant herein raised, inter alia,  a contention that the marriage between  the parties was a nullity.  By a judgment and order dated 9.10.1995, the  Family Court allowed the said application in part by granting a decree of  judicial separation,  maintenance and return of the ornaments.  It was,  however,  directed that in the event the ornaments were not returned the  Respondent would be entitled to the value thereof, namely, a sum of  Rs.3,25,655/-.  However, no decree of interest on the said sum was passed.

       The Family Court directed :

       "The respondent is also directed to return all the  articles mentioned in Exh.A-1 attached to the petition  comprising of articles described in Clause A to G totaling  to Rs.3,25,655/-.  If he fails to return the articles  mentioned therein as far as possible within one month of  the date of this decree, he shall pay the value thereof  mentioned against the said articles not returned as  mentioned in the list."

The Appellant herein preferred an appeal thereagainst  before the  High Court.  The Respondent filed a cross-objection in the said appeal as

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regard non-grant of interest on the said sum.  By a judgment and order dated  20.1.2000,  the High Court  set aside the decree of judicial separation upon a  declaration that the marriage between the parties herein was null and void.   The decree as regard grant of maintenance to the Respondent herein as also  her daughter was, however,  upheld.  The High Court observed  :

       "As regards the claim of the Respondent for return  of her ornaments and other valuable articles, we find that  the Trial Court has taken into consideration both oral and  documentary evidence in that respect and arrived at the  conclusion that the Respondent  wife is entitled to get  back all the Ornaments and  Articles mentioned in list  Exhibit ’A’ to the petition or in the alternative price  thereof.  We do not see any reason to interfere with that,  except the fact that in case the said ornaments or articles  are not returned by the Appellant to the Respondent, he  will have to pay interest on the price thereof which has  been quantified at Rs.3,25,655/-.  In our opinion interest  at the rate  of 9% p.a. on the said amount from the date of  the decree of the Trial Court i.e. 9.10.1995 will be proper  and reasonable interest."     

                                               (Emphasis supplied)

However, it was directed :

"\005We, however, maintain the decree of the Trial Court  in all other respects.  We further partly allow the cross- objections of the Respondent wife to the extent of   granting interest at the rate of  9% p.a. on the price of  Rs.3,25,655/- from the date of the decree of the Trial  Court i.e. 9.10.1995\005"

The Appellant herein, thus,  was not directed to return the ornaments  or articles  to the Respondents within a time frame.  The only direction was  to pay  interest on the price thereof from the date of the decree of the Trial  Court i.e. 9.10.1995 only in the event of the Appellant’s failure to return the  same to the Respondent.   

Two applications for grant of special leave to appeal against the said  judgment of the High Court were filed by the parties herein.  Leave having  been granted by this Court, the appeals were marked as Civil Appeal  Nos.1774 and 1775 of 2001.  

We may, however, notice that in Special Leave Petition (Civil)  No.8195 of 2000 giving rise to Civil Appeal No.1774 of 2001, a limited  notice was issued by this Court confining it to the question as to whether  ’the wife is entitled to maintenance after the court held that the marriage was  nullity’.

In the meanwhile, the Respondents herein initiated an execution  proceeding.  The Appellant by a letter dated 15.3.2000 called upon the  Respondent herein to come personally to Ratlam to get all the ornaments and  other articles mentioned in the list ’A’ of the order of the Family Court dated  16.12.1995.  In the said letter, it was stated :

"If you will not come within 15 days after receipt  of this letter otherwise you should be responsible for not  receiving the ornaments and articles mentioned in the  order/judgment.  You will not be entitled to claim the  amount with interest mentioned as a price of the  ornaments and articles described in the list."

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Together with the said letter a Demand Draft of Rs.2,000/- drawn in  the name of Smt. Rameshwari G. Lakohitia was annexed.  In response to the  said letter, the Respondent herein only returned the demand draft contending  that the same should be drawn up in the name of  Smt. Rameshwari R. Daga.

The Appellant thereafter filed an application before the Executing  Court expressing his intention to return the ornaments on 31.3.2003  whereupon the matter was directed to be placed on 1.4.2003, on which date  an objection was raised by the Respondent as regard, weight as also quality  of the ornaments  produced in  court.  The matter was directed to be placed  on 29.4.2003, on which date the Respondent having not been accompanied  by her advocate or male companion and allegedly having regard to the safety  of the ornaments stated that she would like to come to court on the next date  for the said purpose.   Ultimately the ornaments were delivered to the  Respondent on 2.7.2003.  The quality and quantity of the ornaments, thus,  were not disputed.  

Despite the same, the learned Family Court, keeping in view the  judgment and order dated 20.1.2000 passed by the High Court, directed  payment of interest on the aforementioned sum of Rs.3,25,655/- by the  Appellant from the date of the original decree i.e.  9.10.1995.  

The Appellant herein being aggrieved by and dissatisfied with the  said order  filed a revision application before the High Court which by  reason of the impugned  judgment dated 12.3.2004 was dismissed by a  learned Single Judge  holding :

"In my considered opinion, the learned A.D.J. had  not committed any error.  It is noteworthy that Bombay  High Court had not fixed any date by which ornaments  and other articles had to be returned.  As per decree  interest was payable since the date on which the Family  Court had decreed the case i.e. from 9.10.1995.  Thus,  the liability to pay interest had already commenced since  9.10.1995.  Simply because the applicant had given a  notice of 15 days on 15.3.2000 to the non-applicant to  come and  take her ornaments and other articles, the  liability to pay interest under the decree of the Bombay  Court could not be put into abeyance.  Executing Court  had to execute the decree as the same was, it could  neither add anything to it or substract anything from it\005"

The Appellant is, thus, before us.

Before adverting to the rival contentions raised at the Bar, we may  notice that the aforementioned two civil appeals filed by the parties herein  came up for hearing and by a judgment and order dated 13.12.2004, both the  appeals were dismissed.   The said judgment has since been reported in 2004  (10) SCALE 391.

THIS COURT’S JUDGMENT :         This Court in its aforementioned judgment and order dated  13.12.2004 upon interpreting Section 25 of the Hindu Marriage Act, 1955  upheld   the judgment and decree passed by the learned Family Court  holding :     

       "It is well known and recognized legal position  that customary Hindu Law like Mohammedan Law  permitted bigamous marriages which were prevent in all  Hindu families and more so in royal Hindu families.  It is  only after the Hindu Law was codified by enactments  including the present Act that bar against bigamous  marriages was created by Section 5(i) of the Act.   Keeping into consideration the present state of the

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statutory Hindu Law, a bigamous marriage may be  declared illegal being in contravention of the provisions  of the Act but it cannot be said to be immoral so as to  deny even the right of alimony or maintenance to a  spouse financially weak and economically dependant.  It  is with the purpose of not rendering a financially  dependant  spouse destitute that Section 25 enables the  court to ward maintenance at the time of passing any type  of decree resulting in breach in marriage relationship."     

However, as regard the matter relating to grant of interest it was  observed :

       "We are told that the order of the High Court in so  far as it directs the husband to return ornaments of the  wife or its equivalent value in the sum of Rs.3,25,655/-  with 9% per annum, is a subject-matter of a separate  appeal.  We, therefore, express no opinion with regard to  the same."

SUBMISSIONS :

       Mr. Sushil Kumar Jain, the learned counsel appearing on behalf of the  Appellant would contend that having regard to the judgment and order  passed by the High Court dated 20.1.2000, the Executing Court, and  subsequently the High Court,  committed a serious error of law in directing   payment of interest.  The learned counsel submitted that in view of the fact  that no time was fixed for return of the ornaments, and the Appellant having  offered the same to the Respondent within a reasonable time, no interest on  the said sum of Rs.3,25,655/- was payable.           Mr. S.C. Birla, the learned counsel appearing on behalf of the  Respondent, on the other hand, would contend that the reliance placed by the  Appellant herein on the letter dated 15.3.2000 is misconceived as no such  letter was issued.  According to the learned counsel only a demand draft  dated 21.2.2000 was sent to the Respondent,  which  was returned by her in  terms of a letter dated 13.4.2000 stating that the same should have been  drawn up in the name of Smt. Rameshwari R. Daga.  

       Mr. Birla would submit that in view the judgment and order of the  High Court dated 20.1.2000 as also the judgment of this Court dated  13.12.2004, the dispute between the parties had attained  finality and, thus,   the same could not have been reopened in the executing proceeding  and in  that view of the matter, the High Curt has rightly dismissed the revision  application filed by the Appellant herein.

CONSTRUCTIN OF THE JUDGMENT :         A judgment, as is well known, is not to be read as a statute.  A  judgment, it is trite, must be construed upon reading the same as a whole.   For the said purpose the attendant circumstances may also be taken into  consideration. [Islamic Academy of Education and Another vs. State of  Karnataka and Others \026 (2003) 6 SCC 697,  M/s Zee Telefilms Ltd. & Anr.  Vs. Union of India & Ors. \026 JT 2005 (2) SC 8 and P.S. Sathappan vs.  Andhra Bank Ltd. \026 (2004) 11 SCC 672]

       The Family Court in its judgment and order dated 9.10.1995 did not  grant any interest on the said sum of Rs.3,25,655/-.  An alternative, decree  was only passed to the effect that the Respondent would be entitled to a sum  of Rs.3,25,655/- in the event, the ornaments are not returned to the  Respondent by the Appellant herein.   

       A decree in the nature of mandatory injunction directing a party to the  suit to deliver certain movable property in favour of the Appellant cannot be  equated with a decree for payment of a specified sum.

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       The High Court moreover did not allow the cross objection filed by  the Respondent herein in its entirety.  It was  allowed only in part.  

       The question of the Appellant’s paying the price of the ornaments’  value at Rs.3,25,655/- together with interest @ 9% p.a. from the date of the  decree of the Family Court dated 9.10.1995 could have been the subject- matter of the Execution Petition only if the Appellant did not return the same  to the Respondent within a reasonable time.  The High Court did not  interfere with the judgment of the Family Court to the effect that the  Respondent was entitled to get back all the ornaments except the fact that in  case the said ornaments or articles are not returned by him, he will have to  pay  interest on the price thereof.  Thus, the question of  payment of interest  would have arisen only in the event of the Appellant’s  failure to return the  ornaments to the Respondent.   

       We have noticed hereinbefore that whereas the Family Court directed  the Appellant herein to return the ornaments  within one month from the date  of the decree, and only on his failure to do so he was made liable to pay the  value thereof.   The High Court while upholding that part of the decree,  did  not fix any time therefor.   In absence of any direction having been issued by  the High Court upon the Appellant to return the ornaments within the time  specified therefor, the ornaments could be returned by him to the  Respondent within a reasonable time.  The order of the High Court,  therefore, was a conditional  one.  The Appellant herein offered delivery of  the ornaments to the Respondent by his letter dated 15.3.2000.  The receipt  of the said letter  has been disputed before us but from a scrutiny of the  records it does not appear that the said contention was raised before the  courts below.  No such contention had been raised before the High Court.  In  fact the High Court wrongly proceeded to hold that the Appellant could not  have avoided his liability merely by giving the said notice of 15 days on  15.3.2000.  Issuance of the said notice by the Appellant as also the contents  thereof,  therefore, had not been denied or disputed by the respondent.

       The High Court moreover  misconstrued and misinterpreted its earlier  judgment dated 20.1.2000.  It failed to notice that the direction upon the  Appellant to pay interest was subject to the condition that if he did not return  the ornaments, the direction to pay  interest on the aforementioned amount  of Rs.3,25,655/-  would operate,  and it was  thus not an unconditional  decree.  If the Appellant had fulfilled the conditions specified in the  judgment,  the question of his incurring the liability to pay the price of the  ornaments specified by the High Court did not arise.  

Thus, the direction upon the Appellant to return the ornaments is not  concomitant with the order to pay the price thereof.  The second direction  was, thus, a conditional one which comes into operation only upon non- fulfillment of the first direction.  Thus, by reason of the first direction no  decree  to pay interest on a specified sum was passed.  In that view of the  matter, if no occasion had arisen for paying the aforementioned sum of  Rs.3,25,655/-, the question of paying any interest thereupon would not arise.   Neither the Family Court nor the High Court had directed payment of any  interest on the ground of deliberate and wrongful withholding of the  ornaments by the Appellant.  Even on the said count, no interest could have  been directed to be paid but what could be directed was payment of  compensation.

As this Court in its earlier judgment had no occasion to consider the  effect of the judgment dated 9.10.1995 passed by the  Family Court,  Bombay and the judgment dated 20.1.2000 passed by the High Court of  Bombay, the same did not attain finality.  

CONCLUSION :   We are, therefore, of the opinion that the judgment of the High Court  is not sustainable which is set aside accordingly.  The appeal is allowed.  

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However, in the peculiar facts and circumstances of the case, we direct the  Appellant to bear the costs of the Respondent in this appeal which is  quantified at Rs.10,000/-.  The said sum shall be paid to the Respondent by  the Appellant within four weeks from date.