NRUSINGHA CHARAN Vs. STATE BANK OF INDIA DHENKANAL

JUDGEMENT

(1.) judgement-debtor is the petitioner in this civil revision. In the execution proceeding, he filed an application for allowing him to pay the decretal dues under execution by instalment of Rs. 400/- per month. Executing court having refused the prayer, the order is impugned.

(2.) In the year 1970, judgement-debtor took a loan from the State Bank of India, Dhenkanal Branch (hereinafter referred to as 'the decree-holder'), an amount to R.10,000/- carrying interest @14% per annum. Immovable property of the judgement-debtor was charged against this loan. Decree-holder filed the suit in the year 1974 for realisation of the loan amount with the stipulated interest which was decreed on 3-7-1976. Waiting for three years, application for execution was filed on 21-7-1979. Notice was served on the judgement-debtor on 24-9-1979. On 29-10-1979 writ for attachment of the properties of the petitioner was issued. It was returned unexecuted for want of identifier. Till 26-8-1983 the writs issued for attachment returned unserved each time for want of identifier. On the next date the Court directing the decree-holder for taking steps for warrant of arrest against the judgement-debtor, i.e. on 5-9-1983 judgement-debtor deposited Rs. 500/- and prayed for time to pay the balance. In view of the application, warrant was not issued. Judgement-debtor remained, silent thereafter and on 3-10-1983, warrant of arrest was directed to be issued. Immediately thereafter, an application was filed by the judgement-debtor to recall the order. Executing court recalled the order and directed the judgement-debtor to pay the balance decretal dues at a time by 14-11-1983. Although no payment was made, decree-holder took time till 21-12-1983 to take steps and on 19-1-1984 although appeared did not take any steps. Executing court, however, adjourned the proceeding till 17-2-1984 when decree-holder again took time. Steps for warrant of arrest was taken on 18-2-1984 whereafter, notice was issued to the judgement-debtor to show cause. The same returned unserved. Again steps were taken. Thereafter, the judgement-debtor appeared and filed an application on 13-7-1984 to pay the decretal amount by instalments of Rs. 400/- per month without showing any cause. This having been rejected by the impugned order, the present civil revision has been filed.

(3.) Case of the petitioner is that he is a very poor man and his only source of monthly income of Rs. 1200/- is from the profit from his readymade cloth shop for which he took the loan and from which he maintains twelve members of his family. Accordingly, he prayed for payment in monthly instalments. No objection was filed by the decree-holder disputing the facts. In the impugned order the executing court rejected the prayer being devoid of mer it since the decree is of the year 1976 and the execution case is pending against him for five years.