KARNATAKA BANK LTD Vs. THRIYAMBAK VENKATESH HEBSUR

JUDGEMENT

(1.) This appeal by the Karnataka Bank Ltd, the plaintiff, is directed against and limited to that part of the judgment and decree dt. 27-2-1973' in OS. 14 of 1972 on the file of the Court of the Civil Judge, Dharwar, which while decreeing the plaintiff's suit as prayed for granted to defendant 6 half yearly instalments commencing from 30th Sepr 1973 and allowed only Rs.518 as Pleader's fee as against Rs.1016-96 claimed.

(2.) The suit was for recovery of a loan under an on demand promissory note secured by a charge on property bearing Rs.33/2 of Gudisagar, Nvalgund Taluk, Dharwar Dist. After contest the suit was decreed granting however 6 half yearly instalments to the defendant-respondent in this appeal to pay the amount decreed. The decree has allowed a Pleader's fee of Rs.518.

(3.) The first contention of Sri B.P.Holla for the appellant is that the decree being a mortgage decree grant of instalments was not permissible. That the decree granted by the Court below is a preliminary decree for sale and the personal liability of the defendant is limited only to such part of the decretal sum as may be in excess of the proceeds of sale of the property, is not disputed. However the question whether the provisions of Rule 11 of Order XX CPC conferring a discretion on the Court to grant instalments would or would not apply to a mortgage decree becomes merely academic in the present case in view of the circumstances that the period covered by the instalments has since expired. Assuming, without deciding, that provisions of Rule 11 of Order XX are applicable to mortgage decrees as well, the principles guiding the discretion of the Court in the matter of grant of instalments are laid down in a decision of this Court in Madhavarao Laxmanrao v. Tukaramasa Thulajansa Jithuri, RFA. 16 of 1974 dt. 8-12-1975, wherein it is held that in making an order for instalments not only the condition of the debtor and his liability to pay must be considered but also all other circumstances must be taken into consideration, namely, the date when the loan was incurred, the amount of the loan, the amount of the instalments ordered and the number of years in the course of which it is to be satisfied and that an instalment-decree spreading the instalments over a large number of years is a thing oppressive to the creditor and the Court in passing instalment decrees should be careful to guard also the interests of the creditor. The Court should also consider the prevailing rate of interest in the market in determining the terms as to the rate of interest on which instalments are granted. It was further held therein that where in the exercise of discretion under Rule 11 of Order XX the Court grants instalments, the provisions of Section 84 of the Code are not applicable and it is open to the Court to fix appropriate rate of interest. Tested in the light of these principles it becomes clear that the Court below, in granting the instalments, did not bear in mind the relevant considerations and was not justified in granting instalments. It is seen that the respondent apart from carrying on a business in cotton, though according to him in a small scale, owns 68 acres of agricultural lands. Having regard to all these circumstances, grant of instalments on terms on which it was done in the present case was clearly unjustified. However as the period of the instalments has since expired, the relief in this appeal will be of no practical significance to the appellant.