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1989 DIGILAW 183 (ORI)

SIVINI BABU RAO v. INDIAN OVERSEAS BANK

1989-05-12

L.RATH

body1989
JUDGMENT : L. Rath, J. - The short question that arises for consideration in this revision is whether in a mortgage suit for realisation of the loan amount by sale of the mortgaged property a decree can be passed directing payment of the loan amount with interest by instalments. Opposite party No. 1 filed the suit for realisation of Rs. 78,186.80 with pedente, lite and future interest at the rate of 14% against the Petitioner. The Court came to the conclusion of there being no dispute as to the liability of the Petitioner to repay the suit amount with interest at the rate of 14% per annum and refused the relief of repayment of the dues, amount by instalments being of the view that Order 20, Rule 11 CPC had no application to the facts of the case, the decree being not a money decree. 2. Mr. Misra, the learned Counsel for the Petitioner, has urged the sale question that inasmuch as the ultimate decree passed is one for payment of money with interest, it is in terms a decree for payment of money and hence the Court did not lack jurisdiction to direct payment by instalments. In support of the proposition AIR 1949 174 (Nagpur), and Bank of India, Ghasipura v. Tarini Ice Factory F.A. No. 178/86-D/27-4-1989, disposed of on 27-4-1989 as also Nrusingha Charana Baisakh v. State Bank of India 1988 Banks J. 44, which is also a decision of this Court. 3. It is settled by a series of authorities that the provisions of Order 20, Rule 11, CPC are applicable to money decrees only. Though in Mr. Rukhmanibai's case (supra) a view was taken that a final decree for sale under Order 34, Rule 5 does not cease to be a decree for payment of a sum of money or for the payment of the amount due and that instalments could be directed u/s 11 of C.P. and Bern Money-lenders Act (Act 13 of 1934), yet a Division. Bench decision of the Patna High Court in Basanta Kumar Mitra Vs. Bench decision of the Patna High Court in Basanta Kumar Mitra Vs. Chota Nagpur Banking Association, Ltd. decided on 11th March, 1947 and regarded as a decision of this Court, it held that where a bank had obtained a preliminary mortgage decree for realisation of the amount advanced with interest, Order 30, Rule H, CPC could not be applied, it being applicable only to a money decree and not to a mortgage decree. The same view was also taken in N. Shantilal Vs. A. Sankarasubha Mudaliar. Both the decisions were followed in State Bank of India v. M/s; Meeru Plastics Works, Ludhiana and Ors. AIR 1981 P&H 209. holding the provisions of Order 20, Rule It, Code of Civil Procedure, not, to supersede the provisions of Order 34, Rule 4, CPC and that a suit brought by a bank under such circumstances to be not a simple suit for recovery of money but a suit, for recovery of money by sale as provided under Order 34. Again the Calcutta High Court in United Bank of India v. The New Glencon Tea Co. Ltd. 1987 Bank. J. 380, adopted the same view relying upon, besides the Patna and Madras decisions (supra), on Basivireddi v. Kamaraju AIR 1983 Mad. 241, and K.G. Monappa Vs. A. Venkataswami Naidu and Others that a suit of the nature brought by the bank does not result in simple money decree but a decree for sale. The view, is almost unanimous that a suit brought to enforce a mortgage and realise the loan amount by, sale of the mortgaged property is not a simple money decree to which provisions of Order 20, Rule 11 can be applied. In Bank of India, Ghasipura's case (supra), the question raised here did not come up for consideration and hence is not an authority in support of the Petitioner. 4. As regards applicability of Section 151, CPC to such decrees to direct payment by, instalments for which Mr. Misra has sought to rely upon Nrusingha Charana Baisakh v. State Bank of India 1988 Banks J. 44, a decision of Hon'ble S.C. Mohapatra, J. I am of the view that in the facts of the case there is no scope to invoke such provisions to the benefit of the Petitioner. Misra has sought to rely upon Nrusingha Charana Baisakh v. State Bank of India 1988 Banks J. 44, a decision of Hon'ble S.C. Mohapatra, J. I am of the view that in the facts of the case there is no scope to invoke such provisions to the benefit of the Petitioner. Besides the applicability of Section 151, CPC in such a case to grant instalment is not free from doubt, but however it is not necessary to deliberate upon the same as even if the provisions would have been applicable, yet I do not think it is a tit case for granting such relief. The Calcutta High Court in the case referred to above has also taken the view that Section 151, CPC has no application to such a case. 5. In the result the revision has no merit and is dismissed. Revision dismissed. Final Result : Dismissed