PESTONJI SHAPURJI NARELWALLA Vs. JAMSHEDJI NOWROJI GAMADIA

JUDGEMENT

(1.) The plaintiff filed a summary suit against the defendant to recover a sum of Rs. 25,000 with interest thereon on a hundi dated December 19, 1924. The defendant did not obtain leave from the Judge, as provided in Order 37, Rule 3, to appear and to defend the suit. Accordingly under Sub-rule (2) of Rule 2, in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint should be deemed to be admitted and the plaintiff will be entitled to a decree. Order 37 contemplates, then, that She Court shall pass a decree in a summary suit where the defendant has obtained no leave to appear and defend. But in this case it seems that the defendant's attorney was allowed to appear to make an application for the stay of execution of the decree up to the following Diwali, or in the alternative for payment of the decree by instalments. An objection was raised at the time on behalf of the plaintiffs that the defendant could not be heard as no leave had been obtained. The Judge, however, was of opinion that although the defendant could not be heard on the merits of the case, he might be heard on the question whether the decree should be made payable by instalments. Accordingly, after hearing the parties, the Judge made an order that the decretal amount should be payable by monthly instalments.

(2.) The plaintiff has appealed, although it is admitted that the decretal amount has already been paid. At any rate, he will have the satisfaction of getting a decision on an interesting question of procedure. Under Order 20, Rule 11, Sub- rule (1): Where and in so far as a decree is for the payment of money, the Court may for any sufficient reason at the time of passing the decree order that payment of She amount decreed shall be postponed or shall be made by instalments with or without interest, notwithstanding anything contained in the contract under which the money is payable.

(3.) That Sub-rule (1) clearly contemplates that the application for instalments should be part of the hearing and an order made simultaneously with the decree. Ordinarily speaking then, a person who cannot appear at the hearing cannot be allowed to appear in order to apply for payment of the decretal amount by instalments.