DURGA MHOAN HOSHI Vs. INTERNATIONAL METAL INDUSTRIES

JUDGEMENT

(1.) The plaintiff has filed this suit against the defendants for recovery of a sum of Rs. 4,35.181|- with interest at the rate of 18% per annum on Rupees 4,28,750|- from the date of the suit till payment and for costs of the suit,. The suit was filed as a Summary Suit by the plaintifdf under O, 37 of the Civil P.c. In the suit decree on admission as prayed was granted the in favour or the plaintiff and against the defendants. The minutes of the decree however, which were filed by the parties provided that if the defendants pay to the plaintiff a sum of Rs. 4,21.00|- with interst at the rate of 6% per annum by monthlt instalments as detailed therunder, the decree was to be marked as fully satisfied. The amount was to be paed by monthly instalments whichwere set out in the minuutes and it was provided that if the defendants committed adefault in payment of any two instalmens the plaintiff was entitled to execute the decree forthwith the and recover the entire decretal amount or the balance then unpaid. The defendants also undertook not to dispose of their factory premises specified there in till the entire amount of the decree decree was satisfeid. The decree on admission was obtained on 26th JUly 1982. In terms of the decree the defendants paid monthly instalments up to March 1983. Thereafter they have not paid any further monthly instalments. They have taken for out the present chamber summons on 8th Sept. 1983 asking for extension of time for payment of the monthly instalments under the said decree as from April 1983 onwards. They have asked for an extention of six monthes for payment of each of the instalments due under the decree from April 1983 onwards. They have also prayed that all furhter proceedings on execution of the decree be stayed on such terms and conditions as may be fixed. The latter prayer has been asked for because in view of the defaultrs committedby the defendants the plaintiff has attached certain properties of the defendants. Under an interim order dt. 9th Sept. 1983 passed in the Chamber Summons the defendants have deposited a furhter amount of Rs. 40.000|- which is equivalent to 2 monthly instalments in court.

(2.) This Chamber Summons being opposed by the plaintiff. The plaintiff has submitted that in view of the decree which has been passed by ths court on 26th July 1982 the Court is now functus officio and it has no power to grant any extention of time for payment of any instalments as specified in the said decree. In order to examine this contention it is necessary to look at the provisions of the Civil Procedure Code. Under O. XX . R. 11, sub-rules (1) and (2) it is provided as follows : Order XX :

(3.) Thus when the decree is for the payment of money the court may at the time of passing of thedecree procided for payment of the decree amount by instalments . This poer is required to be exercised by the court at the time of the passing of the decree. Under susb-rule (2) power is given to the court to grant instalments at a date subsequent to the passing of the decree, but only if the decree-holder consents to such an order being passed. This provision indicates that onece a decree for payment of money is p;assed by the court, the court cannot afterwards grant any decree holder. It was submitted before me by Mr. Devitre, learned counsel for the defendants that the provisions of sub-rule (2) would apply in the case oof those money decrees where no order has been made for payment of the decretal amounts by instalmets at the time of the passing of the decree. In the other words, he submitted that if the final decree provided for instalments then sub-rule (2) would have appear to be correct. Order XX, r. 11 applies I terms to all money decrees. Under sub-rule (1) power is given to the court to grant instalments without the consent of the decree holder at the time when the decree is passed; while under sub-rule (2) such power can be exercised by the court at a subsequent date only with the consent of the decree holder. There iis nothing in the language of sub-rule (2) which would indicate that sub-rule (2) will be applicable only to those money decrees in which instalments have not been granted at the time of the passing of the decree. Sub-rule (2) applies to all money decrees and a money decree as a money decrees and a money decree for payment of which instalmens have been granted is a smusch a money decree as a money decree simpliciter. Thus under O. XX, R. 11 sub-rule (2) it is not open to me to grant any further instalment or to prescribe a different period for the payment of isntalments without the consnt of the decree holder. In fact it was precisely on account of this limitationon the powers of the Courts under sub-rule (2) that some High Court R. 11 , C.P.C. in this regard. Thus the High Court of Andhra Pradesh and Madras had amended on O, XX. R. 11 sub-rule (2) to read as follows :