RAM NARAYAN SHARMA Vs. SITA RAM PATHAK

JUDGEMENT

(1.) THIS is an application by the decree-holder against an order of the Court below permitting the opposite party to pay the petitioner's decree by instalments. It appears that on 9 September last while the decree was under execution the judgment-debtors offered to pay Rs. 300 at once if they were allowed to pay the balance by instalments. The decree-holder objected to this, but on 13th September, instalments were allowed and the decree-holder withdrew the sum of Rs. 300 which had been deposited by the judgment-debtors. The order of the Court below does not disclose that the circumstances of the judgment-debtors or their capacity were taken into consideration by the Court below for the order passed. Section 12, Money-Lenders Act, requires a Court to take into consideration the circumstances of the judgment-debtor, the amount of the decree and the capacity of the judgment debtor to pay instalment on the due dates. THIS Court is reluctant to interfere with orders passed by the Court below in exercise of its discretionary powers but as such powers must be exercised judicially a Court should be careful to indicate in its order the reasons for it BO that this Court may be satisfied that the discretion has been exercised judicially. The opposite party contends that as the decree-holder has with drawn the Rs. 300 which was deposited, he cannot now be allowed to challenge the instalment order. Reference was made to that class of cases in which it has been held that a person who takes a benefit under an order of the Court which he would not be otherwise entitled to, cannot be allowed to challenge the order after he has availed himself of that benefit. The decree-holder in the present case, however, was entitled to realize his dues from the judgment-debtors including Rs. 300 which was deposited. THIS was not a benefit which he received merely because an instalment order was passed but because he was entitled to it under his decree and the judgment-debtors placed it within his reach. In my opinion, the case must go back to the Court below in order that a judgment may be written indicating that the provisions of Section 12, Money-Lenders Act, have been properly considered.

(2.) THE order of the Court below is, therefore, set aside and the case sent back for re-hearing. If the Munsif considers that evidence is necessary in order to decide the matter satisfactorily he will give the parties an opportunity of adducing evidence.