J P STEEL INDUSTRIES Vs. STATE OF GUJARAT

JUDGEMENT

(1.) *****

(2.) THE only contention which has been raised by Mr. Sompura on behalf of the defendants is that the decretal amount should be made payable by instalments. Instalments can be granted under Order 20 Rule 11 of the Code of Civil Procedure. In case of a decree to recover the mortgage amount no instalments can be granted under Order 20 Rule 11 In Sankarapa Dargo Patel v. Danapa Virantapa (1881) I.L.R. 5 Bombay 604 a Division Bench of the High Court of Bombay whilst interpreting sec. 210 of the Code of Civil Procedure 1877 which was pari materia with Order 20 Rule 11 in so far as the scope thereof was concerned took the view that an order for payment by instalments of the decretal debt in case of a mortgage amount cannot be made. In Hardeo Das and Another v. Hukam Singh (1878)I.L.R.2 Allahabad 320 a Division Bench of that Court while interpreting sec. 210 of the Code of Civil Procedure 1877 laid down that it was not applicable in a suit for recovery of the amount of a bond -debt by the sale of property hypothecated by such bond. A similar view was taken by a Division Bench of the High Court of Patna in Basanta Kumar Mitra v. Chota Nagpur Banking Association Ltd. A.I.R. 1948 Patna 18 In that case the scope of Order 20 Rule 11 of the Code of Civil Procedure came up for consideration. It has been laid down by the Patna High Court that Order 20 Rule 11 applies to a money decree and not to a mortgage decree and that therefore the decretal amount due under a mortgage decree cannot be made payable by instalments Mr. Sompura has tried to invite our attention to the decision of Mr. Justice V. B. Raju in Narharlal Kuberdas Patel and Others v. Manilal Bhogilal and Another partners of the Firm Pari Bhogilal Amritlal 4 G.L.R. 939. THE principle laid down in that decision has no application to the facts of the instant case because all that Mr. Justice Raju has laid down in that decision is that no instalments can be granted in a case where preliminary decree has been passed. He has also tried to rely upon another decision of Mr. Justice Raju in Prabhudas Uttamdas v. Lavar Bai Uji wd/o Lavar Godad Atmaram and Others 3 G.L.R. 919. In that decision it has been laid down that sec. 24 of the Bombay Money Lenders Act has no application to a preliminary decree and that no instalments can be granted after the pas- sing of the preliminary decree in a mortgage suit and before the passing of the final decree. THE two decisions upon which Mr. Sompura has tried to rely have no application to the facts of the instant case. THE only contention which Mr. Sompura has raised therefore cannot be upheld under Order 20 Rule 11 of the Code of Civil Procedure. Appeal dismissed.