MAHANARAYANA Vs. VASUDEV

JUDGEMENT

(1.) These Civil Revision Petitions are referred to a Bench by Ranganadham Chelly, J., under the impression that there is a conflict between Order 20, rule 11(2), Civil Procedure Code, and section 12 of the Hyderabad Money-lenders Act. He thought that under Order 20, rule 11 (2), Civil Procedure Code, a Court cannot grant leave to pay the decree amount in instalments unless agreed to by the decree-holders, while section 12 of the Hyderabad Money-lenders Act does not require the decree-holder's assent. But there is no inconsistency between the two provisions in this regard. Order 20, rule 11(2), Civil Procedure Code, does not law brown that before the judgment-debtor is permitted to pay in instalments the consent of the decree-holder should be obtained. Rule 11(2) is in these words:

(2.) Thus, the consent of the decree-holder is not a prerequisite to the Court allowing the judgment-debtor to pay the decretal amount in instalments. The provisions of section 12 of the Hyderabad Money-lenders Act are in pari materia with those of Order 20, rule 11(2), Civil Procedure Code. Therefore, these two provisions are not conflicting and the question does not arise as to which of the two enactments should prevail over the other. The learned Judge was also not correct in thinking that the lower Court dismissed the application because of the want of consent of the decree-holder. The executing Court rejected the petition on the ground that the petitioner should approach the. Court which passed the decree.

(3.) The only question, therefore, that arises in this petition is whether an application under Order 20, rule 11(2) could be made only to the Court which passed the decree or even to the executing Court. In our opinion, it is only the Court which passed the decree that could give any relief under rule 11 (2), Civil Procedure Code. The juxtaposition of the word 'Court' in sub-rule (2) to the preceding words, namely, 'after the passing of any such decree' gives some indication as to the intendment of the rule. That implies that it is only the Court which passed the decree that is competent to afford relief under that rule, and not the executing Court. Quite apart from that, as pointed out by a Full Bench of the Nagpur High Court in Bilimoria v. Central Bank of India, Ltd., Bombay, ILR (1944) Nag. I (FB) , the order directing payment: of the decretal amount by instalments is an order which varies the decree and it is not within the power of the Court executing the decree to alter or vary it, its only function in regard to the transferred decree being to execute it. This is also the opinion expressed in O.R.M.M.S.P.S.V. Chettiyar Firm v. K.P.P. Narayana Chettiyar, (1934) ILR 12 Rang. 320. Therefore, the only Court that has got power to grant instalments under Order 20, rule 11 (2), Civil Procedure Code, is the Court which passed the decree. The executing Court is not invested with any such power. In this view of the matter, it is unnecessary to consider whether section 12 of the Hyderabad Money-lenders Act is applicable to a decree obtained on a hundi. It follows that the order sought to be revised is correct and cannot be successfully challenged.