DHANUKDHARI SINGH Vs. RAMRATAN SINGH

JUDGEMENT

(1.) This is an appeal by the judgment-debtors. The opposite party obtained a decree against the appellants for Rs. 5470-2-0. On the application of the appellants under Section 11, Bihar Money-lenders Act, the Court fixed instalments for the payment of this decretal debt. The judgment-debtors were to pay Rs. 200 within a week, and Rs. 1000 on 1 January 1940, and on 1 January of each succeeding year until the debt with interest had been repaid. The judgment- debtors failed to pay the initial sum of Rs. 200 within the week allowed. The Court then extended that time and gave them three weeks within which to make the payment. The payment however was not made within the extended time, although we are told Rs. 150 was deposited later as a part of the initial sum of Rs. 200. No part of the instalment which fell due on 1 January 1940, has been paid. The judgment-debtors attempted to persuade the Court that they were capable of paying only Rs. 300 per annum, and they now appeal against the decision of the Court below on the ground that the instalments fixed are too high.

(2.) A preliminary objection has been taken on behalf of the respondents that no appeal lies in this case. The respondents referred us to orders which have been passed in two similar cases. In civil Revision No. 366 of 1939 decided by Wort J., on 19 December 1939, it was held that no appeal lay against an order under Section 11, Bihar Money-lenders Act. The learned Judge relied on the fact that whereas an appeal against an order under Section 13 of the Act is expressly provided, there is no such provision with regard to an order under Section 11.

(3.) The other case mentioned was the miscellaneous appeal of Sia, Ram V/s. Sanjib, which was disposed of on 4 March 1940, by a Division Bench of this Court. The matter was before that Bench for the purpose of considering an application for extending the time for filing an appeal under Section 5, Limitation Act. The Bench held that, as no appeal lay from an order under Section 11, the question of extending the time did not arise. Wort J., in the first of these cases, pointed out that the right of appeal from a decree is not a constitutional right but is the creature of statute, and as the Moneylenders Act did not confer a right of appeal from an order under Section 11, no right of appeal existed. No reference was made to the provisions of Section 96, Civil P.C., which confers a right of appeal against a decree, and Section 2(2), Civil P.C., which defines "decree" and includes within the definition an order passed by an executing Court under Section 47.