MONOTOSH KUMAR MITRA Vs. AMARENDRANATH SHAW DEAD

JUDGEMENT

(1.) In a mortgage suit, a preliminary decree was passed in favour of the appellant on 18/11/1968. The said decree directed the payment of the sum of Rs. 24,000. 00 in four equal instalments. The first instalment was payable on or before 3 1/03/1969 and subsequent instalments by 31st day of March of each succeeding years. Thus the last instalment was payable on 3 1/03/1972. The decree further stipulated that in case of default of payment of any one of the instalments, the plaintiff may, subject to the provisions of Bengal Money Lenders' Act, 1960 (for short, Bengal Act) , apply to the court for a final decree for sale of the mortgage property and on such application being granted, the mortgaged property or a sufficient part thereof shall be directed to be sold.

(2.) It has not been questioned that neither the first instalment payable under the decree on or before 31/03/1969, was paid by the defendants nor was any subsequent instalment paid.

(3.) Order 34 Rule 2 of Code of Civil Procedure inter alia stipulates grant of six months' time to the defendant to pay the mortgage amount stipulated under the preliminary decree and on default of payment, the plaintiff is entitled to apply for final decree directing sale of the mortgaged property as stipulated by Rule 4 of Order 34. Section 34 of Bengal Act, however, empowers the court to direct payments by instalments notwithstanding the limit of six months fixed in Order 34 of Code of Civil Procedure. Section 34 of the Bengal Act reads as under:- "34. Power of court to direct payment by instalments - (1) Notwithstanding anything contained in any law for the time being in force, or in any agreement, the court shall - (a) in suits in respect of loans to which the provisions of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, apply, on the application of the defendant and after hearing the plaintiff, notwithstanding the limit of six months provided herein, direct at the time of the passing of the preliminary decree under rule 2 or rule 4 of the said Order to the effect mentioned in sub-clause (i) of clause (c) of sub-rule (1) of the said rule 2, - (i) that the payment of the amount found or declared due under sub-rule (1) of rule 2 or sub-rule (1) of rule 4 of the said Order, as the case may be, is to be made, subject to such conditions as the court may impose in such number of annual instalments and on such dates as the Court thinks fit having regard to the circumstances of the plaintiff and the defendant and the amount of the decree; and (ii) that in default of payment of any such instalment the plaintiff shall, after giving to the defendant such notice as may be prescribed, be entitled to apply for a final decree under sub-clause (ii) of clause (c) of sub-rule (1) of the said rule 2 or under sub-rule (1) of the said rule 4, as the case may be, and the date of such default shall be deemed to be the date fixed under sub- clause (1) of clause (c) of sub-rule (1) of the said rule 2 for payment of the whole amount fund or declared due under or by the preliminary decree: Provided that nothing in this clause shall affect the power of the court to allow extension of time under sub-rule (2) of rule 2 or sub-rule (2) of rule 4 of the said Order: Provided further that if the defendant, after receiving the notice referred to in sub-clause (ii) and before a final decree is passed, makes payment into court of the amount due from him in respect of any such instalment, the payment of such instalment shall not be deemed to be in default and the court shall not pass a final decree; (b) in suits in respect of loans advanced before the commencement of this Act other than those referred to in clause (a) - (i) on the application of a defendant and after hearing the plaintiff, order at the time of the passing of the decree, or (ii) on the application of a judgment - debtor against whom a decree in such suit has been passed whether before or after the commencement of this Act and after notice to the decree-holder, order at any time after the decree has been passed, that the amount of the decree shall, subject to such conditions as the court may impose, be payable without interest in such number of annual instalments, on such dates and within such period not exceeding twenty years as the court thinks fit having regard to the circumstances of the plaintiff and the defendant or the decree-holder and the judgment-debtor and the amount of the decree, and that, if default is made in making payment of any instalment, that instalment and not the whole of the decretal amount shall be recoverable; (c) during the pendency of any enquiry under sub-clause (ii) of clause (b) order, subject to such conditions as the court may impose, the stay of execution of the decree. (2) In default of payment of any instalment referred to in clause (b) of sub- section (1) , the decree-holder shall, after giving to the judgment-debtor such notice as may be prescribed, be, entitled to apply for execution of the decree in respect of such instalment together with interest thereon at the rate of not more than six per centum per annum from the date of such default: Provided that nothing in this sub-section shall affect the power of the court to allow, prior to an order for execution of the decree, an extension of time of not less than one year for the payment of any instalment, and if such extension of time is allowed, the payment of such instalment shall not be deemed to be in default: Provided further that if the judgment- debtor, after receiving the notice referred to in this Ss. and prior to an order for execution of the decree, makes payment into court of the amount due from him in respect of any such instalment, the payment of such instalment shall not be deemed to be in default and the court shall not order execution of the decree. (3) Any order made under sub-clause (ii) of clause (b) of sub section (1) shall be deemed to have been passed under section 47 of the Code of Civil Procedure, 1908. "