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1992 DIGILAW 34 (GAU)

Alam of Tezpur Town, Cotton Road, Tezpur v. United Bank of India Tezpur Branch, Tezpur

1992-02-10

U.L.BHAT

body1992
Respondent bank which advanced money to revision petitioner on charge of immovable property filed a suit for recovery of the money on the charge and by the sale of the hypothecated property. Def-ants initially filed written statement admitting the material facts is the plaint and praying that a decree may be pissed allowing them to pay the decretal amount at a monthly installment of Rs. 2.000/- and exempting them from paying future interest. Thereupon the pla­intiff filed an application praying for decree to be passed on admission and also stating that the plaintiff was not agreeable to allow the defendants to pay the decretal amount in installments. Thereupon the defendants filed an application on 15.10.85 praying that either a decree may be granted allowing them the benefit of insta­llment or they may be permitted to file a fresh written statement. This application is opposed by the plaintiff and dismissed by the trial Court. Hence this revision. 2. I have gone through the plaint and the written statement filed by the defendants. The defendants admitted the loan, the mortgage, the guarantee, the non-payment of the loan and the right of the plaintiff to enforce the mortgage. These admissions are contai­ned in paragraphs 2 and 3. Paragraph 1 reads thus :- "That the defendants admit the claim of the plaintiff". Paragraph 4 reads thus - “4. That this application is made bonafide and for ends of justice. In these premises, the defendants pray a) That the suit be decreed against the defendants with Mortgage rights over the lands and house and hypothec­ated charges over the said vehicle and its accessories as described in schedule. b) That the defendants be allowed to pay the decretal dues by monthly installments of Rs. 2,000/- (Rupees Two Th­ousand) each without fail. e) That the defendants be granted exemption from paying future interest." 3. The claim for benefit of installment was resisted by the plain­tiff and thereupon the defendants wanted either a decree with the benefit of installment as suggested by them or permission to file written statement contesting the suit. This application, it appears to me, was rightly dismissed by the trial Court. The defendants having filed a written statement admitting the material averments and claim in the plaint cannot ordinarily be allowed to turn round and substitute the written statement by another written statement contesting the suit. This application, it appears to me, was rightly dismissed by the trial Court. The defendants having filed a written statement admitting the material averments and claim in the plaint cannot ordinarily be allowed to turn round and substitute the written statement by another written statement contesting the suit. The ordinary rule must give way in exceptional cases such as where a party is made to sign a pleading on account of fraud or compulsion or where his written statement is vitiated on account of any other legal infirmity. But there is no such plea in this case. Defendants sought to compel the plaintiff to allow repayments under threat of filling a written statement contesting the suit. That could not have been allowed by the Court below. 4. It is, of coarse, always open to the plaintiff in a suit on mortgage to permit his judgment-debtor to pay the decretal amount after a lapse of a particular period or in installments. That is a matter for the plaintiff to decide. Order 34 Rule 4 deals with preliminary decree in a suit for sale. The relevant portion of the rule reads:- "4. Preliminary decree in suit for sale.-(1) In a suit for sale, if the plaintiff succeeds, the Court shall pass a preli­minary decree to the effect mentioned in clauses (a), (b) and (c) (i) of sub-rule (I) of Rule 2, and further directing that, in default of the defendant paying as therein mentioned, the plaintiff shall be entitled to apply for a final decree........” Relevant portion of Rule 2 reads thus:- "2. Preliminary decree in foreclosure suit.-(i) In a suit for foreclosure, if the plaintiff succeeds, the Court shall pass a preliminary decree:- (b) declaring the amount so due at that date ; and (c) directing - (i) That, if the defendant pays into Court the amount so found or declared due on or before such date as the Court may ix within six months from the date on which the Court confirms and countersigns the amount taken under class (a),......" 5. By virtue of Rule 4 read with Rule 2 of Order 34 C.P.C. in passing a preliminary decree, the Court shall fix a period (and that period must be 6 months or less) within which the defendants shall pay the amount determined to the plaintiff. By virtue of Rule 4 read with Rule 2 of Order 34 C.P.C. in passing a preliminary decree, the Court shall fix a period (and that period must be 6 months or less) within which the defendants shall pay the amount determined to the plaintiff. The decree should specifically refer the time so granted and direct the defendant to pay the amount determined within such time and allow the plaintiff to apply for a final decree in case the amount is not paid within time fixed. Sub-rule (2) of Rule 4 enables the Court to extend the time for payment of the amount. In a case where the mortgage document does not allow the mortgagor to repay the amount in installments, the Court in passing decree under Rule 4 of Order 34-CPC can only grant to the defendant time not exceeding 6 month and cannot grant him the benefit of paying the amount in instil­ments. Payment in installments is foreign to the scope of Rule 4 Order 34 CPC. 6. In this connection it may be relevant to notice that sub-rule (1) of Rule 11 of Order 20 CPC reads thus:- "11. Decree for recovery of immovable property.-(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 had 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 installments, with or without interest, notwith­standing anything contained in the contract under which the money is payable." The above provision enables the Court passing the decree to grant defendant benefit of paying decretal amount in installments in the case of "decree for payment of money". It is argued a decree for recovery of money on mortgage can be regarded as decree for recovery of money. A decree under Order 34 Rule 4 CPC is not a decree for payment of money, but it is decree for recovery of money by sale of mortgaged property. Such a decree has to be passed in conformity with the provisions of Order 34 CPC, and has to be regarded as a decree passed on a mortgage and not a decree for money simplicitor. Such a decree has to be passed in conformity with the provisions of Order 34 CPC, and has to be regarded as a decree passed on a mortgage and not a decree for money simplicitor. Therefore, the provisions of Rule 11 of Order 20 CPC cannot enable the Court to grant the benefit of installments while passing a decree for enforcement of a mortgage. The same view has been taken by Division Bench of this Court in F.A. 79 of 1986. United Bank of India vs. Sri Jadav Chandra Deka relying on decision in United Bank of India vs. The New Glencoe Tea Co. Ltd. AIR 1987 Calcutta 143 and I am in respectful agreement with the same. The Calcutta High Court has placed reliance on three decisions of the Madras High Court in Basivireddi vs. Kamaraju, AIR 1933 Mad. 241, Vasudevan vs. Kutti Umma, AIR 1941 Mad. 805 , N. Shantilal vs. A. Sankara, AIR 1979 Mad. 13 and one of Patna High Court in Basanta Kumar vs. Chotanagpur Banking Association AIR 1948 Pat. 18. 7. For the above reasons I decline to interfere and accordingly dismiss the revision petition but without cost.