ZAVERCHAND PANAJI Vs. MAYADEVI CHIMANLAL PARIKH

JUDGEMENT

(1.) THIS is an appeal arising from an application for execution in which execution is going on before a Court to which it has been transferred. The judgment debtor made an application in that Court for instalments under Section 24 of the Bombay Money -lenders Act. That Court held that it had no power to grant the instalments, inasmuch as the powers under Section 24 of the Bombay Money -lenders Act could only be used by the Court which passed the decree. Hence this appeal.

(2.) NOW , Section 24 of the Money -lenders Act runs as follows: Notwithstanding anything contained in the Code of Civil Procedure, 1908, the Court may, at any time, on application of a judgment -debtor, after notice to the decree -holder, direct that the amount of any decree passed against him, whether before or after the date on which this Act comes into force, in respect of a loan, shall be paid in such number of instalments and subject to such conditions, and payable on such dates, as, having regard to the circumstances of the judgment -debtor and the amount of the decree, it considers fit. The marginal note of the section is, 'Power of Court to direct payment of decretal amount by instalments.' The Act seems to be modelled upon the Central Provinces Money -lenders Act, Section 11 of which is as follows: - Power to direct payment of decretal amount by instalments. The Court may, at any time, on the application of a judgment -debtor, after notice to the decree -holder, direct that the amount of any decree passed against him, whether before or after this Act conies into force, in respect of a loan shall be paid in such number of instalments and subject to such conditions on the dates fixed by it as, having regard to the circumstances of the judgment -debtor and the amount of the decree, it considers fit. That Act appears to have defined the words 'the Court,', but the Bombay Act does not define them. The meaning of the words 'the Court' is consequently left to be gathered from its dictionary meaning as modified by anything which there may be in the context. The previous sections, namely, Sections 21 to 23 apply to the Court which has passed the decree though Section 21 alone uses the words 'a Court', and it is contended on behalf of the respondents -creditors who rely upon the definite article that the words must be taken to refer to the Court which is referred to in Section 21 and which is impliedly intended even by Sections 22 and 23. It is contended secondly that the effect of grant of instalments is to vary the decree. Ordinarily the executing Court has got no power to vary the decree Which has been passed by the trial Court, and it will have to I execute the decree as it is. It is true that the executing Court has got all the powers of the Court which passed the decree, under Section 42 of the Code of Civil Procedure, but that is, when 'executing', and if the power under Section 24 of the Money -lenders Act cannot be said to be power of executing the decree, then the executing Court will ordinarily not have the power under Section 24. It is said, in the third instance, that if the intention was to clothe both the Courts which passed a decree and the Court to which a decree is transferred for execution with the power under 's. 24, the Legislature would have not left the matter to be argued and would have provided that both the Courts would have the power under Section 24. Finally it is contended that the words in Section 24 'notwithstanding anything contained in the Code of Civil Procedure, 1908', and the words '' after notice to the decree -holder'' suggest that the application which has got to be made is an application to the Court which passed the decree, and not to the executing Court.

(3.) THE only question which remains is whether the words include also the Court to which execution is transferred. Now, the principal argument of Mr. Shastry, who appears on behalf of the judgment -debtor, is that the words 'the Court' are very wide. In their ordinary sense they would include not only the Court which passed a decree, but also the Court to which the decree is transferred for execution, because both are Courts. Consequently in case it is contended that the words only include the Court which passed the decree, then there must be something in the language of the section itself which restricts their meaning. Now, that is obviously correct. But one thing which restricts the meaning of the word 'Court' is, as I have already mentioned, the definite article which indicates that what is contemplated is the Court which is referred to already, and the Court which has been referred to already is undoubtedly the Court which passed the decree. In the second instance, as was pointed out by their Lordships of the Nagpur High Court in Bilimoria v. Central Bank of India [1943] A.I.R. Nag. 340, F.B. ordinarily speaking an executing Court has not got power to alter or amend a decree, and if the Legislature intended to confer this power upon that Court one would expect it to use unmistakable language. That is especially so when by the same section it is intended to clothe the Court which passed the decree with the power to grant instalments. It seems obvious to me that in case it was contemplated that both the Courts should have the power, the Legislature would not have been content to use an expression like 'the Court' which, considering the context in which the words have been used, that is, they have been used in a section succeeding to sections in which only the trial Court has been referred to, are to say the least, ambiguous and clearer words would have been used to indicate that the Court to which the decree is transferred for execution also has got power to grant instalments.