DODDA HANUMANTHA RAO Vs. ALAMALAKALA KRISHNA MURTHY OFFICER

JUDGEMENT

(1.) This case has been referred to us by Kuppuswami J , as he was not inclined to agree with the dicision of Venkatrama Sastry, J., in Nageswara Rao V. Chandrasekhara Rao (1) (1973) (2) An. W.R. 47). In OS. No. 211/1970 on the file of the Court of the Subordinate Judge, Vijayawada a decree was obtained against the respondent on 21-9-1971 for a sum of Rs. 8703/-. The respondent-judgment-debtor filed I.A. No, 2858 of 1971 under Order XX Rule 11 (2 CM'.C. requesting that he may be pen, itted to pay the amount decreed in instalments. This was opposed by the decree-holder, but was, nevertheless, ordered by the learned Subordinate Judge without any reasons being assigned for such order. The decree-holder preferred an appeal to the District Court, Krishna. But the learned District Judge rejected the appeal as not maintainable relying upon the decision of Venkatrama Sastry J., in Nageswara Rao V. Chandrasekhara Rao (1) (1973) (2) An W.R. 47). The legal representatives of the decree-holder have preferred this appeal contending that the district Judge was wrong in rejecting the appeal as not maintainable.

(2.) Sri J. V. Suryanarayana Rao, learned councel for appellants contended that the order directing payment of the amount decreed in instalments was one related to the execution, discharge or satisfaction of the decree within the meaning of Section 47 and was, there- fore, appealable as a decree. He fur- there contended that the Court which passed the decree which alone was competent to make an order under Rule XX 11 (2) was an executing Court within the meaning of Section 47. Section 47 (1) of the Civil Procedure Code is as follows:-

(3.) The expression 'Court executing the decree' occurring in section 47 C.P C. was interpreted by the Supreme Court in M. P. Shreevastava V Veena (2)AIR 1967 S.C. 1193). the Supreme Court held that there was no warrant to interpret the expresssion 'Court exeeuting the decree' as used in Section 47 to mean a 'Court which is seized of an application for execution of a decree at She instance of the decree-holder They observed that the power conferred by section 47 was not to be limited by any strained or artificial construction of the words 'Court executing the decree' Having regard to the scheme of the Code, the expression could not be given a limited meaning. The pendency of an application for execution by the decree-holder was not a condition for exercise of the power under section 47. An application made by the judgment debtor which raised a question relating to execution, discharge or satisfaction of a decree was also an application before the court executing the decree. The Supreme Court also held that the expression 'Court whose duty it is to execute the decree' occuring in Order XXI Rule 2 meant the court which under the law was sompetent to execute the decree.