HAZARI SINGH Vs. BETHAL KAHAR

JUDGEMENT

(1.) THIS application by the decree-holders is directed against an order granting instalments of a decree which has been passed in a suit for recovery of a loan of Rs. 791 with interest. The total amount of the decree was Rs. 1229 which, as I was told by counsel, included a decree for costs for an amount of Rs. 335. Instalments granted are that Rs. 100 will be repaid on 31 October 1946, and Rs. 100 will be repaid at the end of April, another RS.100 at the e October, of each subsequent year, till the amount is completely paid up. Accordingly, the last instalment falls due on 31 October 1962. No doubt, the period over which the instalments are distributed is a very long one and looks some what improper, but the difficulty is how far can I interfere in civil revision.

(2.) THE question is governed by Section 11, Bihar Money Lenders Act which excluding immaterial portion reads: Etc...that the amount of any decree passed before or after the commencement of this Act, in respect of a loan, shall be paid in such number of instalments and subject to such conditions and on such dates as it considers fit. My interpretation of the section is that the jurisdiction of the Court to grant instalments is confined to that amount of the decree which is in respect of the loan referred to in the section. THE Legislature cannot be considered guilty of redundancy. A decree may in some Gases be anomalous. It may embrace partly a loan and partly what is due on accounts which do not answer the definition of "loan" in the Act. For example, a decree may be partly for recovery of loan and partly of damages or of security debts. It is not within the scope of the Money- Lenders Act to give relief to judgment-debtors in such cases. THE decree for costs may or may not have direct reference to the loan: sometimes the plaintiff secures a decree in respect of a loan, but is granted no decree with regard to costs: sometimes costs bear no proportion to the extent of variation in the claim in respect of the loan. I see no reason why the words "the amount of any decree in respect of a loan" should not be strictly construed to mean that portion of the decree which represents the loan, that is, strictly speaking, the principal and interest. THE order for costs is strictly speaking an order to the defendant to recompense the plaintiff for the loss that he Buffers in incurring expenditure of Courts of law a contingency that has arisen out of defendant's default. THE liability then created has not necessarily any reference to contract between the parties, while a loan arises out of contract. THErefore, the order of instalment under revision will not govern the amount of costs decreed. THE decree-holder will be free to execute that amount of the decree which represents the costs the amount should be determined by the executing Court on reference to the decree in the suit. THE civil revision is allowed in part. Under the circumstances of this case I will make no order as to costs.