Decided on April 01,1960

MOHANLAL Appellant
BANSHILAL Respondents

Referred Judgements :-



CHHANGANI, J. - (1.)THIS is a second appeal by Mohanlal and Nihalchand against the appellate decree of the Civil Judge, Sirohi dated 5th November, 1958, whereby a direction given by the Munsif, Abu Road for the payment of a decree against them in further easier instalments was reversed.
(2.)THE facts briefly stated are as follows: - On 5th October, 1960, a consent decree was passed in favour of the respondent Bansilal for an amount of Rs. 675/- payable in monthly instalments of Rs. 20/- each. On Oct. 14, 1957, the present appellants put up an application before the Munsif. Abu Road under sec. 24 of the Bombay Money-lenders Act, 1946 (Bombay Act No. XXXI of 1947) (hereinafter referred to as the Act) for re-fixation of the instalments on easier terms. After giving notice to the respondent, the Munsif accepted the application and directed that the remaining decretal amount shall be payable in instalments ; i. e. Rs. 50/-payable on 15th May of each year and Rs. 25/- payable on 15th November of each year.
Aggrieved by this direction of the Munsif, the respondent filed an appeal, which was heard by the Civil Judge, Sirohi. Before him the present appellants raised a preliminary objection that the respondent could not appeal against the direction of the Munsif as the order was not appealable. The appellate court overruled the preliminary objection and on merits held that the judgment-debtor had himself agreed to pay instalments fixed at the time of the passing of the original decree with full knowledge of his financial position and that he had not proved bury change in circumstances to justify the varying of the earlier scheme of payment. He Accordingly accepted the appeal and maintained the original decree. Mohanlal and Nihalchand have filed this appeal.

Mr. Kishoresingh appearing for the appellants has urged two main contentions: - (1) That, no appeal lies against an order passed under sec. 24 of the Act and the lower court took an erroneous view of law in entertaining the appeal and over-ruling objection relating to the non-maintainability of the appeal. (2) That, at any rate, the lower appellate court had absolutely no justification to interfere with the discretionary order of the Munsif, Abu Road.

In support of his contention, Mr. Kishoresingh has relied upon Dhanukdharisingh Vs. Ramratansingh (1 ). In that case, Agarwala and Rowland JJ. interpreting a similar provision contained in sec. 11 of the Bihar Money-lenders Act held that an appeal does not lie against an order under sec. 11. The conclusion reached by the learned Judges is based upon two premises - (1) That, the court which entertains an application under sec. 11 of the Bihar Money-lenders Act is an execution court and an order passed by it is under sec. 47 of the Civil Procedure Code. (2) That, an order fixing instalments is not a determination of the right of the parties. In the words of Rowland J. , it is an order regulating the procedure in the matter.

With regard to the first premise, as sec. 11 of the Bihar Money-lenders Act and the scheme of the Act have not been referred to in the judgment, it is not possible to express any final opinion on this aspect of the matter, but generally speaking, 1 have no hesitation in stating that ordinarily applications under such special Acts for fixation of instalments etc. must lie to the court which passed the decree and not to the execution court. At this stage, it will be convenient to quote sec. 24 of the Act. It reads as follows: - "notwithstanding anything contained in C. P. C. , l908, the court may, at any time on application of a judgment debtor after notice to the decree holder, direct that the amount of any decree passed against him whether before or after the date on which this Act comes into force, in respect of a loan shall be paid in such number of instalments and subject to such conditions, and payable on such dates as, having regard to the circumstances of the judgment debtor and the amount of the decree, it considers fit".

The provision is more or less in terms similar to O. 20 R. 11 C. P. C. and therefore, cases under O. 20 R. 11 (2) of C. P. C. can suitably be considered for interpreting (2) sec. 24 of the Act. O. 20 R. 11 of the C. P. C. was considered in O. R. M. M. S. P. S. V. Chettyar Firm Vs. K. P. P. Narayanan Chattyar (2), Ma Su Vs. Cassim Hamid (3) and Bilimoria Vs. Central Bank of India (4) and the word "court" was interpreted to mean the court which passed the decree. It may also be pointed out in this connection that the last mentioned case (4) dealt with a case under a similar provision of the C. P. Money-lenders Act and the Full Bench overruling an earlier decision of the court held that the word "court" appearing in sec. 11 of the C. P. Money-lenders Act, 1939 meant the court which passed the decree. There is further the high authority of the Privy Council in Adaikappa Vs. Chandrasakhara (5 ). In that case, after prelimiliary and final decrees were passed in a mortgage suit, the judgment-debtor made an application under sec. 19 of the Madras Agriculturists' Relief Act to the court which passed the decree asking that the decree be amended in accordance with the provision of the Act and a declaration be made that the debt was wholly discharged under sec. 8 of the Act. The application was dismissed on the ground that the judgment-debtor was not an agriculturist. The Privy Council, on these facts held that the order was not made in the execution proceedings, but was made in a suit and amounted to a decree within the meaning of sec. 2 (2) of the C. P. C. and hence an appeal lay against such an order, though sec. 19 did not confer a right of appeal from such an order. The Privy Council further in connection with the general question of the applicability of orders under special statutes observed: "where a legal right is disputed and the ordinary Courts of the country are seized of such dispute, the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal. " A reference to the sections preceding sec. 24 of the Act also shows that the word "court" in these sections has been used in the sense of the original court and not the execution court. There is a valid ground for presumption about the use of the word court in the same sense in sec. 24. On a consideration of the case law on similar provisions in other laws and the scheme of the Act, I have no doubt that the word "court" has been used to denote the court which passed the decree and not the execution court and the first premise upon which the Patna decision (1) is based is, therefore, not available in connection with a case falling under sec. 24 of the Act.

The second premise upon which the conclusion was based is that the question whether a judgment-debtor is entitled to the indulgence of instalments, does not relate to the rights of the parties. It was treated as a matter of mere procedure. The Patna case had. relied upon two cases. Deokinandansingh Vs. Bansisingh (6), and Surendernath Vs. Mritunjay Banarji (7 ). Both these cases were regarding order assessing valuation of property for the purpose of drawing sale proclamation. Indeed there was no determination of rights in those cases. I however doubt whether the principle of the cases could be extended to an order fixing instalments which does in a manner affect the parties in their financial interests. In my opinion, the view taken is based upon a very narrow interpretation of the word "right". The controversy in a matter like this is whether the decree-holder can insist upon an immediate payment of the decretal amount or whether the judgment-debtor in view of his financial position is entitled to any indulgence. The parties are required to lead evidence tor a proper determination of this controversy and a decision affects their pecuniary interests. It is difficult in these circumstances to hold that this is not a determination of the rights of the parties but is merely an interlocutory order regulating the procedure. I, therefore, differ from the view taken by the learned Judges in the Patna case (1) and hold that a direction of a court fixing instalments conclusively determines a right between the parties.

Thus, the second premise relied upon in the Patna case is also not correct. With respect I therefore hesitate to accept the view taken in the Patna case and hold that a decision under sec. 24 of the Act is a decision of the original court determining some rights of the parties is clearly appealable.

(3.)THERE is yet another approach to the matter. A decree having once been passed, any subsequent order or direction fixing instalments, or for that matter, re-fixing the instalments, is clearly a case of varying the decree or bringing into existence an amended decree and naturally, therefore, it being a decree, it must be held appealable. In this view, I am fully supported by a Full Bench decision of the Nagpur High Court (4) and also by the observation of the Privy Council in the case mentioned above (5 ). In view of what has been stated above, I am quite clear that an order under sec. 24 of the Act must be considered as an order of the court in a suit and it results in a decree, which must be held applicable under sec. 96 of the C. P. C. The lower court was justified in entertaining the appeal.
Coming to the second contention, I may at once observe that it is altogether devoid of force. Examining the decision of the Munsif, I find that he approached the case in a very unsatisfactory manner. In the first instance, he framed an issue which really did not arise. It was, "are the applicants capable and have means to pay the decretal amount in a lump sum at a time"? The original decree itself directed payment of amount in instalments. It is not clear whether under the terms of the original decree, the judgment-debtors had become liable on account of any default in the payment of the full amount. Assuming that they had, still, the issue should have been framed to indue the question of re-fixation of the instalments in variance of the original terms of the decree. Further, the burden was wrongly placed upon the decree-holder-respondent. The Munsif also failed to consider that in the original decree, the instalments had been fixed by the consent of the parties and whether there were any exceptional circumstances justifying the change in the compromise decree. The decree is only for Rs. 675/ -. About 3. 5 years have already passed. On regular payment in terms of the original decree, the decree would have been satisfied long back. In these circumstances, I am of the opinion that the civil Judge was fully justified in accepting the appeal and set aside the order of the trial court.

The appeal has consequently no merits and is hereby dismissed. In the circumstances of the case, there will be no order as to cost. .


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