S PREMSINGH Vs. PURUSHOTHAM

JUDGEMENT

(1.) The petitioner is a judgment debtor, who sought for instalments subsequent to the passing of the decree. The suit was filed in the year 1981. The Court below dismissed the application on the ground that in view of the decision of this Court in T. Chinna Naidu vs. B.B. Doramasi the consent of the decree-holder is necessary for granting instalments at the execution stage and that, if there is no consent, the application cannot be allowed. The lower Court, therefore, refused to grant instalments.

(2.) It is contended by Sri Koka Raghava Rao the learned counsel for the petitioner, that the above said decision requires reconsid eration inasmuch as the learned Judge has not considered the applicability or otherwise of the Madras amendment to Order 20 Rule 11 CPC which was in force prior to the commencement of the Civil Procedure Code Amendment Act of 1976. On the other hand, it is contended by the learned counsel for the respondent decree holder Sri G. Suryanarayana Murthy that the Madras Amendment does not survive inasmuch as there is no positive inconsistency between the Code as amended in the year 1976 and the earlier Madras amendment. Prior to the amendment by the Central Act of 1976, the provisions of Order 20 Rule 11 Clause 2 CPC read as follows : Orerd 20 (11) (2) :

(3.) For this purposes, it is necessary to refer to the provisions of Sec. 97 of CPC amendment Act, 1976. Section 97 of the 1976 Amendment Act in so far as it is material for our purpose reads as follows :