NARAYAN DAS ALIAS BABUA DAS Vs. PARBATI DIBYA

JUDGEMENT

(1.) THE judgment-debtor is the appellant. Preliminary and final decrees for foreclosure were passed respectively on 20-2-1959 and 27-1-1960. In Execution case No. 151 of 1960 in the Court of the Munsif, Puri, an application under Section 13 of the Orissa Money Lenders Act (hereinafter to be referred to as the Act) for granting instalments was filed on 21-7-60. The courts below rejected the application holding that it was not maintainable.

(2.) THE point involves a substantial question of law and needs close examination. Section 13 (1) of the Act runs thus:

(3.) A preliminary decree in a suit for foreclosure is passed under Order 34, Rule 2, c. P. C. If the plaintiff succeeds, the Court shall pass a preliminary decree -- (a)ordering that an account be taken of what was due to the plaintiff at the date or such decree for (i) principal and interest on the mortgage, (ii) the costs of suit, if any, awarded to him and (iii) other costs, charges and expenses properly incurred by him up to that date in respect of the mortgage security together with interest thereon; or in the alternative (b) declaring the entire amount so due at that date. If the payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the defendant fails to pay, within such time as the Court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interest, the plaintiff shall be entitled to apply for a final decree debarring the defendant from all right to redeem the property. Under Order 34, Rule 3 (2), where payment in accordance with Sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree declaring that the defendant and all persons claiming through or under him are debarred from all right to redeem the mortgaged property and also, if necessary, ordering the defendant to put the plaintiff in possession of the property. Under Sub-rule (3), on the passing of a final decree under Sub-rule (2), all liabilities to which the defendant in respect of the mortgage or on account of the suit shall be deemed to have been discharged. Under Section 13 of the Act, the Court may direct that the amount of any decree passed before or after the commencement of the Act, in respect of a loan, including any decree in a suit relating to a mortgage by which the loan is secured, shall be paid in different instalments as may be fixed by the Court. Once a final decree for foreclosure is passed, there is no "amount of any decree in respect of a loan". The language is undoubtedly wide enough to include any decree relating to a mortgage, but, in the context, it cannot include a decree in which an amount of money is not involved. To say that final decree would come within the scope of section 13 would be repugnant in the subject and the context. The final decree for foreclosure does not involve any payment of money. After the passing of such a decree, the decree--holder has no claim for money and cannot enforce such a claim in law. The liabilities of the judgment-debtor under the decree are also discharged as is clearly laid down in Sub-rule (3) of Rule 3 of Order 34, C. P. C.