Executing court can not permit JD to pay decretal amount by instalments

Citation: AIR1985AP49

IN THE HIGH COURT OF ANDHRA PRADESH

Civil Revn. Petn. No. 465 of 1983

Decided On: 17.06.1983

Appellants: Jatti Krishnareddy
Vs.
Respondent: Bhadri Ramagopalaiah

Hon'ble Judges: Lakshmana Rao, J.

Civil - Execution Court - Sections 47 and 151 and Orders 20 Rule11 of Code of Civil Procedure, 1908 and Article 126 of Schedule to Limitation Act, 1963 - whether Execution Court has power to direct payment of decretal amount of installments - petition filed under Section 47 for direction to pa ..... 126 of the Limitation Act will be defeated and it will be open to any judgment debtor to move the executing Court at any stage of the execution proceedings to permit him to pay the decretal amount by instalments which is contrary to the provisions of O.20, R.11, C.P.C.

1. The question that arises for consideration in this civil revision petition is whether the execution Court has power to direct payment of decretal amount by instalments.

2. The petitioner herein who is the judgment debtor filed a petition under S. 47 C.P.C. for a direction to pay the decretal amount in five equal annual instalments. On an objection raised by the office as to maintainability of the petition, the matter was heard by the learned Subordinate Judge and an order was passed on Feb. 8, 1983 holding that the petition is not maintainable. The learned counsel for the petitioner has referred to the provisions of O.20, R.11, C.P.C. and S. 47, r/w S. 151, C.P.C. and submitted that an executing Court has got the power to direct payment of decretal amount in instalments and that such an order does not amount to alteration or modification of the decree. O.20, R.11, C.P.C. reads as follows.

O. 20, R.11.: Decree may direct payment by instalments: (1) Where and in so far, as a decree is for the payment of money, the Court may for any sufficient reason incorporate in the decree after hearing such of the parties who have appeared personally or by pleader at the last hearing, before judgment, an order that payment of the 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.

Order, after decree, for payment by instalments. (2) After the passing of any such decree the Court may, on the application of the judgment debtor and with the consent of the decree-holder, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment debtor, or the taking of security from him, or otherwise, as it thinks fit.

3. Sub-rule (2) of R.11 was amended in so far as it is applicable in the State of Andhra Pradesh and for the words, 'with the consent of the words' after notice to' are substituted.

4. Relying upon a judgment of the Supreme Court in Motilal Banker v. Maharaj Kumar Mahmood Hasan Khan, : [1968]3SCR158 and also the judgment in Sidagavada kanagavda patil v. Ramchandra Babaji Gujar AIR 1924 Bom 118 the learned counsel contends that the power of the executing Court, is not in any way affected to pass appropriate orders in exercise of power under S. 47 r/w S. 151. C.P.C. in the case decided by the Supreme Court referred to above execution proceedings ended in a compromise. The appellant therein agreed not to execute the decree for two months and the respondent agreed to pay the decretal amount of Rs.24, 150/- within two months with interest at 1 per cent per month until realisation. In default of payment the appellant was authorised to realise the amount due under the compromise in execution proceedings. The execution Court recorded the compromise; the question that arose for consideration in that case was whether the compromise was enforceable in execution proceedings. While considering this question, their Lordships of the Supreme Court have observed as follows:

The jurisdiction of the executing Court to enforce such a compromise is not taken away by O.23, R.4 of Civil P.C. The effect of O.23, R. 4 is that O.23, R.3 does not apply to execution proceedings. Independently of O.23, R.3 the provisions of O.21, R. 2 and S. 47 enable the executing Court to record and enforce such a compromise in execution proceedings. Nor does O.2O, R.11 (2) after this power of the executing Court. O.20, R.11 enables the Court passing the decree to order postponement of the payment of the decretal amount on such terms as to the payment of interest as it thinks fit on the application of the judgment debtor and with the consent of the decree-holder. It does not affect the power of the executing Court under S. 47 and O.21, R. 2'*.

5. Relying upon these observations, the learned counsel for the petitioner has contended that the provisions of O.20, R.11 do not take away or affect the power of the executing Court under S. 47 and O.21, R.2 and that the executing Court has got the power to pass an order directing payment of the decretal amount in instalments. While disposing of the matter, their lordships have also observed that 'As the Court which passed the decree, it had the power to pass an order under O.20, R.11 in terms of the compromise of May, 29 1954 directing postponement of the execution of the decree on the terms that the judgment debtor would pay interest at the rate of 1 per cent per month until realisation. The prescribed period of limitation under Art. 175 of the limitation Act, 1908 for an application for payment of the decretal amount by instalments was six months from the date of the decree. The compromise petition did not ask for payment of the decretal amount by instalments. It asked for postponement of the execution of the decree for two months.' It may be noticed that in this case, a compromise was entered into for the purpose of postponement of execution of the decree and the compromise petition was not for payment of the decretal amount by instalments. Apart from that, their Lordships have held that O.20, R.11 enables the Court passing the decree, to order postponement of the payment of the decretal amount on such terms ass to the payment of interest as it thinks fit on the application of the judgment debtor and with the consent of the decree-holder. In that context, it is held that the said provisions do not affect the power of the execution Court under S. 47 and O.21, R.2. C.P.C.

6. In the instant case, the Court that passed the decree is different from the Court that has passed the inpugned order in the execution proceedings. Apart from that, in the case decided by the Supreme Court (Motilal Banker's Case) (supra) the question as to the power of the executing Court to pass an order directing payment of decretal amount by instalments did not arise for consideration. It was a case where the execution of the decree was postponed pursuant to a compromise entered into between the parties in the course of the execution proceedings. In case of Sidagauda (supra) a Bench of the Bombay High Court has no doubt held that 'in execution the Court may modify the decree by directing payments by instalments'. The learned counsel for the petitioner himself has drawn my attention to a Division Bench judgment of the Court in Mahanarayana v. Vasudev, 1959 Andh LT 866 which considered the scope and effect of O.20, R.11. While interpreting the provisions of S.12 of the Hyderabad Money-lenders Act (V of 1340F) their Lordships have held that 'the only Court that has got power to grant instalments under O.20, R.11 (2) Civil P.C., is the Court which passed the decree. The executing Court is not invested with any such power. This judgment is direct authority for the proposition that only the Court which has passed the decree, is competent to grant instalments and the executing Court does not have any such power. The learned counsel for the respondent has submitted that an application for payment of decretal amount by instalments has to be filed within 30 days from the date of the decree under O.20. R.11 (2). Admittedly in the instant case, the petitioner has not filed any such petition within 30 days from the date of the decree permitting him to pay the decretal amount by instalments as provided in Art. 126 of the Limitation Act, 1963. Having regard to the provisions of Art. 126, it is submitted by the learned counsel for the respondent that if the contention of the petitioner that the execution Court has got the power to permit payment of decretal amount by instalments is accepted, the purpose and object of the period of limitation of thirty days prescribed in Art. 126 of the Limitation Act will be defeated and it will be open to any judgment debtor to move the executing Court at any stage of the execution proceedings to permit him to pay the decretal amount by instalments which is contrary to the provisions of O.20, R.11, C.P.C. Having regard to the direct judgment of this Court reported in case of Mahanarayan v. Vasudev (supra) which is binding on me and with which view. I am in respectful agreement. I hold that the orders passed by the Court below is quite legal, valid and justified.

7. For the reasons stated above, this civil revision petition fails and is accordingly dismissed. In the circumstances there shall be no order as to costs.

8. Revision dismissed.