ARJUN CHARAN BEHERA Vs. SUKDEV SAHOO

JUDGEMENT

(1.) ON 24th July 1963 this revision was heard in part. As the advocates on either side were not fully prepared this was adjourned. On that day Mr. M.F. Uddin appeared for the opposite party, but today he des not appear.

(2.) PLAINTIFF -decree -holder is the Petitioner. He got a decree for Rs. 4600 -. The judgment -debtor filed Misc. Case No. 330 of 1961 in the concerned execution case under Section 13 of the Orissa Money -Lenders Act praying for installments. The learned trial Court dismissed the application for installments. The learned lower Appellate Court reversed this decision and granted the prayer for installments with the following direction:

(3.) IN this case the sworn testimony of the Defendant is opposed by the evidence of the decree -holder. There is no corroborating evidence. There are no materials on record from which the circumstances of the judgment -debtor can be determined. Without therefore categorically coming to a finding as to the circumstances of the judgment -debtor, the Court illegally exercised its jurisdiction in allowing instalments. The learned Judge appears to have misconceived the legal position in stating as if the onus was on the decree -holder to establish the circumstances of the judgment -debtor. The following passage quoted from his judgment would make the point clear: