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Madhya Pradesh High Court · body

1978 DIGILAW 633 (MP)

Dhuraji Shankarlal Kasara v. Thavarji Motiji Kasara

1978-08-29

B.R.DUBE

body1978
Short Note : 1. The non-applicant had obtained an instalment decree for the amount of Rs. 24,523 against the applicants, the annual instalment being Rs. 1,500. It was stipulated that the first instalment shall be paid on 1-5-77 and the rest by the first date of the month of May of the following years. It was also stipulated that in default of payment of anyone of the instalments, the applicants shall be liable to pay the entire decreetal amount in a lump sum along with interest. On the due date i. e. 1-5-77 the applicants failed to pay the first instalment. They tendered the amount on 14-5-77 by a cheque but the same was refused. The applicants, therefore, moved the trial Court to extend the time for the payment of the first instalment. The extension was sought on the ground that the applicant had, allow, the mistaken belief that they had to deposit the first instalment on 15th May, 1977 and thereafter on similar date of the following years. It was averred that the mistake being bona fide, may be condoned. The application was opposed by the non-applicant. The trial Court held that it had no jurisdiction to vary the terms of the decree. Hence the application was rejected. The applicants have, therefore, come to this Court in revision. Held : The Supreme Court in Mahant Ram Das v. Ganga Das, ( AIR 1961 SC 882 ) has held that section 148 CPC does not apply to conditional decrees although it would apply to conditional orders in a suit or appeal. Therefore, once an instalment decree is passed the trial Court could have no jurisdiction to extend the time fixed for payment of the instalment under the decree. The Court cannot as well extend the time for the payment of the first instalment under the decree under Order 20, rule 11 (2) CPC. It is true that in case the facility of instalment is not given under Order 20, rule 11 (1) CPC, it can he given by the Court under Order 20, rule 11 (2) CPC. However, once the facility of instalment is already given under sub-rule (1) of rule II of Order 20 CPC, the terms of the decree cannot be varied by extending the time of payment of the instalment as stipulated in the decree. However, once the facility of instalment is already given under sub-rule (1) of rule II of Order 20 CPC, the terms of the decree cannot be varied by extending the time of payment of the instalment as stipulated in the decree. On account of the default having been made by the applicants, the non-applicant got the right to recover the entire amount of the decree in a lump sum. That right cannot he denied by extending the time for the payment of the instalment. In case the executing Court is satisfied that the applicants have got any genuine difficulty in making the payment of the decreetal amount in lump sum immediately, it may exercise the discretion in postponing the payment for reasonable time, but the Court has got no jurisdiction to extend the time of the payment of the first instalment and thereby regularise the decree as instalment decree despite the fact that the non-applicant has acquired the right to recover the whole amount in a lump sum, AIR 1961 SC 882 relied on. Revision dismissed.