SUNDER LALL Vs. FLORANCE FORSTER

JUDGEMENT

(1.) The question which arises in this case is whether the learned Subordinate Judge of Patna Improperly acted in exercise of his jurisdiction in rejecting an application made by the petitioner for granting instalments under Section 11, Money Lenders Act.

(2.) It appears that the petitioner filed the application under Section 11, Money Lenders Act on 8-8-1951 in which he prayed that an instalment of Rs. 1000 per year may be fixed and sale may be stayed. The Subordinate Judge ordered that the question of fixing instalment will be considered only "if the judgment-debtor paid Rs. 3000 by 31-8-51". No deposit was made by the petitioner on 31-8-1951 but time was extended by the Subordinate Judge till 17-9-1951 to make the deposit. The judgment-debtor made default and on 25-9-1951 he filed a petition with a chalan praying that he may be allowed to deposit the amount of Rs. 3000 and that further proceedings in the execution case may be stayed. The matter was placed before the Subordinate Judge on 27-9-1951 and the Subordinate Judge ordered that money should be deposited in the first hour on 28-9-1951. No chalan was however issued to the petitioner till 4 P.M. on 28-9-1951. It appears that 29-9-1951 was a clearance day and thereafter the Court was closed, for the Puja Vacation and it re-opened on 6-11-1951. On 8-11-1951, the petitioner filed an application before the Subordinate Judge praying that he may be allowed to deposit the amount of Rs. 3000 and the question of granting instalments may be decided by the Court. This application was summarily rejected by the learned Subordinate Judge on the ground that the petitioner had not made deposit of Rs. 3000 within the time granted to him : vide order No. 45 dated 8-9-1951.

(3.) The submission of Dr. Qazi Nazrul Hassan who presented the case of the petitioner is that in imposing the condition of the deposit of Rs. 3000 before hearing the application under Section 11, Money Lenders Act the learned Subordinate Judge has acted illegally in exercise of his jurisdiction. Learned counsel pointed out that under Section 12, Money Lenders Act the Court was bound in deciding an application under Section 11 to take into consideration "the circumstances of the judgment-debtor, the amount of the decree and the capacity of the judgment-debtor to pay the instalments on the due date". In our opinion the submission of the learned counsel is correct and the learned Subordinate Judge acted beyond his jurisdiction in imposing the preliminary condition for the hearing of the application filed under Section 11, Money Lenders Act. Neither Section 11 nor Section 12, Money Lenders Act imposes any condition preliminary to the hearing of the application for instalments and we think that the learned Subordinate Judge had no justification (jurisdiction?) for asking the petitioner to make deposit of Rs. 3000.00 & fixing a time limit for making the deposit. For these reasons we consider that the order of the learned Subordinate Judge dated 8/8/1951 and his subsequent orders relating to the matter of deposit culminating in the order dated 8/11/1951 by which the learned Subordinate Judge rejected the petition of the judgment-debtor for considering the question of instalment should all be set aside.