GOPINATH NATH TEWARI Vs. BAHADUR GIRI

JUDGEMENT

(1.) THIS is an application in revision by the decree-holder and is directed from the order dated 10-6-70 of the court below, whereby it has allowed the prayer of the judgment-debtors to pay up the decretal dues by instalment. Since the impugned order of the learned Munsif is so very arbitrary and illegal that not only it has to be set aside but it has to be set aside with some comment. What happened in this case was that in execution of his decree the decree-holder got certain properties of the judgment-debtors sold and the sale took place on 1-6-70. The properties were purchased by the decree-holder for Rs. 1,528.03 paise with encumbrance of Rs. 4,000/-. Thereafter the judgment-debtors filed an application on 10-6-70 stating therein that the decree-holder has got the property sold for Rs. 1,52s/-and the judgment-debtors wanted to pay the money by quarterly instalments. I am amazed to find that the learned Munsif did not issue any notice of this application to the decree-holder, did not apply his mind to the matter at all as to whether the judgment-debtors were entitled to any instalment after the sale, did not look to the provisions either of Section 11 or of Section 12 of the Bihar Money Lenders (Regulation of Transactions) Act, 1939, hereinafter called the Act, and arbitrarily made an order that the "Instalment petition filed by the judgment-debtor is allowed." Thereafter the decree-holder filed an application for recall of that order. The matter was heard on 22-6-70 and by order dated 23-6-70 the learned Munsif held that the application was maintainable and not only refused to recall the earlier order but also allowed certain instalments in modification of the earlier order.

(2.) WHEN an order for sale of property is made under Order 21, Rule 64 of the Code of Civil Procedure, hereinafter called the Code, the sale can be postponed to enable the judgment-debtor to raise the amount of the decree in accordance with Rule 83. The application under Section 11 of the Act may even be entertained before the sale is held. Rut after the sale and after the satisfaction of the decree by the sale, no decretal dues are there to be paid. No petition under Section 11 of the Act can be entertained. Confirmation of sale is obligatory under Rule 92 of Order 21 of the Code when no application is made under Rule 89, Rule 90 or Rule 91 or where such an application is made and disallowed. In this case no such application was made. The learned Munsif was, therefore, obviously wrong in his view expressed later that before confirmation of sale an application under Section 11 of the Act was maintainable even though filed after sale. Neither in the first order nor in the second order the learned Munsif has taken care to record any finding with reference to Section 12 of the Act. I wonder how the Additional Munsif behaved in a manner which was wholly unwarranted by law and made the arbitrary order on 10-6-70. The civil revision application is, therefore allowed, the order dated 10-6-70 is set aside. Since a new order dated 23-6-70 has been passed modifying the earlier order and that order also is without jurisdiction, it must also be set aside. I accordingly set aside the order dated 23-6-70 also. In the circumstances of the case, I do not feel inclined to saddle the judgment-debtors with any further cost. Therefore, I make no order as to cost. The application filed by the judgment-debtors on 10-6-70 is directed to be dismissed.