CHINNA NAIDU Vs. BUTCHAMMA DORAMASI

JUDGEMENT

(1.) Petitioner is the decree-holder. He obtained a money decree against the respondents. Thereafter the respondents filed an application under Sec. 151 C.P.C. requesting the court to fix a sum of Rs. 1000/- as yearly instalment payable from July 1, 1981. The petition was ordered directing payment by October 30 every year until the decree is discharged. Against this order, the present C.R.P. has been filed.

(2.) Sri Surya Rao, the learned counsel for the petitioner contended that the order of the lower court is clearly in excess of the jurisdiction vested in it. After the decree has been passed the court has no jurisdiction, except on consent of the party, to grant instalments though it is open to the court, for the reasons to be recorded, before passing a decree. I find considerable force in the contention of the counsel for the petitioner. Order 20, R. 11 (1) CPC empowers the court before rendering judgment, on hearing the counsel, to direct payment of the amount by postponement or shall be made by instalment with or without interest, notwithstanding anything contained in the contract between the parties. But -sub-rule (2) thereof incorporates an embargo on the exercise of the power. Therein, it postulates that after passing of such a decree, on an application made by the judgment debtor the court is empowered to pass instalments, provided the decree holder gives his consent. In this case, the petitioner-decree-holder did not give his consent. On the othet hand, he opposed the passing of the decree for instalments. When there is a specific provision under the Code the exercise of the power under Section 151 CPC is clearly prohibited. The only course open to the court is to exercise the power under the sub-rule (2) of Rule 11 of Or. 20 CPC. As seen earlier, the embargo to exercise of the power is the consent of the decree-holder. Since the decree holder expressly did not give his consent for passing the decree for instalments as prayed for, the court has no jurisdiction to pass the decree for instalments. Accordingly, the exercise of the jurisdiction of the lower court is clearly vitiated by an error of jurisdiction.

(3.) Accordingly the CRP is allowed, but in the circumstances without costs. Appeal allowed.