UNITED BANK OF INDIA Vs. MD. NAZIRATDDIN AND OTHERS

JUDGEMENT

(1.) The United Bank of India has filed this appeal against the preliminary decree passed on 24.5.1986 by the Assistant District Judge (2) Nagaon in TS 40/85 in a suit for sale relating to mortgage of immovable property. The decree declares an amount of Rs. 12,86,705.93 to be paid by the defendants to the plaintiff-Bank and orders the defendants to pay the plaintiff-Bank the aforesaid amount, interest at 6% per annum from the date of institution till realisation of the decretal amount, costs of Rs. 12,492.18, and Rs. 10,000.00 on 2.6.1986 and the balance by instalments at the rate of Rs. 3,000.00 per month commencing from the month of July 1986. The decree also, inter alia, directs that, in default of defendant paying the mortgaged money, the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold.

(2.) Mr. B.K. Goswami, learned counsel for the appellant, has contended that the payment of money by instalments, which is provided under Order 20, rule 11, C.P.C. in a decree for payment of money, is not applicable to a suit relating to mortgage of immovable property. He has referred us to a decision of Calcutta High Court reported as United Bank of India Vs. New Glencoe Tea Company, AIR 1987 Cal. 143 to support his contention. Mr. A.C. Bora, learned counsel for the defendant-respondents, has contended that, in a suit for sale, the decree orders for payment of money and, therefore, Order 20, rule 11, is applicable to the facts of the case.

(3.) The question which arises for consideration is whether in a suit for sale in relation to a mortgage of immovable property, Order 20, rule 11 can be invoked for directing the payment of money by instalments.