OM PRAKASH Vs. J&K BANK LTD

JUDGEMENT

(1.) THIS is a revision application directed against an order of the District Judge, Jammu, dismissing the judgment -debtor applicants appeal from an order of the City Judge, Jammu, refusing to allow the payment of the decretal amount in instalments, on the ground that such an appeal is not competent under O. 43, R. 1 ii read with O. 20, R. 11 2, Civil P. C.

(2.) WE have heard the learned counsel for the parties. There is no such clause as ii in the corresponding provisions of O. 43, R. 1, Civil P. C. as in force in the other States in India. Sub -rule ii of R. 1 of O. 43 of our Civil P. C. runs as follows: "ii an order under sub -rule 2, R. 11 of ; Order passed without the consent of the parties". The learned District Judge accepting the contention of the decree -holder non -applicant has ¢ held that an appeal by the judgment -debtor from an order rejecting his application to fix instalments for payment of the decretal amount does not fall within this sub -rule. The main argument of the learned counsel for the non -applicant in support of this order of the learned District Judge is that a reference to Sub -rule 2 of R. 11 of 0. 20, according to him, would show that an order would be made under this sub -rule only if the executing court fixes instalments with or , without the consent of the decree -holder as indicated in the sub -rule and that an order refusing to exercise this discretion vested in the executing court under this sub -rule would not be an order under sub -rule 2. After careful consideration of sub -rule 2 of R. 11 of O. 20, Civil P. C. and all the other material to which our attention has been drawn by the learned counsel for the non -applicant, we are unable to accept this contention. Both the orders fixing instalments or refusing to fix instalments for the payment of the decretal amount by the executing court would be made under sub -rule 2 of R. 11 of O. 20 and an order under this sub -rule would be appealable under O. 43, R. 1 ii, Civil P. C. if it is passed without the consent of the parties. It would be doing nothing short of violence to the language of sub -rule ii of R. 1 of O. 43 to confine its application to those orders alone by which fixation of instalments for payment of the decretal amount is made. If the Legislature wanted to confine the right of appeal only to those cases, in which an order granting application for instalments was made, it could have said so specifically to manifest that intention as it has done in so many other clauses of R. 1, O. 43, e.g., sub -clause d, where an order under R. 13 of O. 9 rejecting an application for an order to set aside a decree passed ex parte has been made appealable. A reference to sub -rule 2 of R. 11 of O. 20 of our Code would show that the executing court can fix instalments with the consent of the decree -holder or without such consent for special reasons which are to be recorded. The words "consent of the parties" appear nowhere in sub -rule 2 of R. 11 of O. 20 but in O. 43, R. 1 ii, Civil P. C., the words used are "an order under sub -rule 2, R. 11 of O. 20 passed without the consent of the parties". These words are very wide and include the consent of the judgment -debtor. An order rejecting an application for instalments under the afore -mentioned sub -rule 2 would clearly be against the consent of the judgment -debtor.

(3.) A reference to Note 14 of the Chitaleys Code of Civil Procedure Act V of 1908 under O. 20, R. 11 1951 Ed. at p. 2114 would show that where an order granting a decree for instalments is made under sub -rule 1 of R. 11 of O. 20 it will of course be incorporated in the decree itself and can, therefore, be attacked in an appeal against the decree but where it is not so incorporated the order will not be appealable because that Code as already indicated does not contain provision similar to one incorporated in sub -rule ii of R. 1 of O. 43 of our Code referred to above. In Rangoon and Nagpur, however, sub -rule 2 of R. 11 of O. 20 of Act 5 of 1908 which in other Indian States does not give the executing court power to fix instalments for the payment of the decretal amount without the consent of the decree -holder has been amended and gives the executing court almost similar power as is contained in our sub -rule 2 of R. 11 of O. 20. Some rulings of the Rangoon High Court have been cited before us to show that there both "orders allowing an application for instalments or refusing such an application by the executing court have been held to be appealable under S. 47, Civil P. C. as relating to the execution, discharge or satisfaction of the decree within the meaning of that - section. But it is not necessary to go into that question as in our view appeal in this case is competent under O. 43, R. 1 ii, Civil P. C.