THANDARAM S/O. MANWA Vs. KASHIPRASAD

JUDGEMENT

(1.) THIS appeal has been preferred by the judgment-debtor against the order of the lower Court rejecting his second application for instalments, under Section 11, C.P. Money-lenders Act. It is admitted that the judgment-debtor had previously filed an application, under Section 11 of the Act, for instalments on 12-12-1941, in respect of a certain money decree that was passed on 28-8-1933, that application is to be found typed at p. 1 of the paper book. That application was dismissed for default of the judgment-debtor, on 14-4-1942.

(2.) ON 14-7-1942 the judgment-debtor presented a second application, out of which this appeal arises, for instalments under Section 11, C.P. Money-lenders Act, and it was this application that was rejected by the learned Judge in the Court below, or the ground that it was not maintainable, as the first application, on the same allegations, was dismissed under Order 9, Rule 8, Civil P.C.

(3.) IT , therefore, follows that although the proceedings under Section 11, Central Provinces Money-lenders Act, are not, strictly speaking, proceedings under Section 47, Civil P.C., still by fiction of law, the former proceedings have got to be treated on the same footing, as the proceedings under Section 47, Civil P.C., and that an order passed in these proceedings has to-be treated as an order passed under that section for the purpose of an appeal. If this fiction of law is to be adhered to, it follows as an inevitable corollary, that the proceedings under Section 11, Central Provinces Money-lenders Act, are not mere proceedings in execution.