R. K. Manisana, J.— The United Bank of India has filed this appeal against the preliminary decree passed on 24.5.86 by the Assistant District Judge (2), Nagaon in Title Suit No. 40 of 1985 in a suit for sale relating to mortgage of immovable property. The decree declares an amount of Rs. 12,86,705.93 to be paid by the defendants to the plaintiff-Bank and orders the defendants to pay the plaintiff-Bank the aforesaid amount, interest at 6% per annum from the date of institution till realisation of the decretal amount, costs of Rs. 12, 492.18, and Rs. 10,000/- on 2.6.86 and the balance by instalments at the rate of Rs. 3,000/- per month commencing from the month of July, 1986. The decree also, inter alia, directs that, in default of defendant paying the mortgaged money, the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold. 2. Mr. B.K. Goswami, learned counsel for the appellant, has contended that the payment of money by instalments, which is provided under Order 20 Rule 11, CPC in a decree for payment of money, is not applicable to a suit relating to mortgage of immovable property. He has referred us to a decision of Calcutta High Court reported as United Bank of India vs. New Glencoe Tea Co., AIR 1987 Cal 743, to support his contention. Mr. A.C. Bora, learned counsel for the defendant-respondents, has contended that, in a suit for sale, the decree orders for payment of money and therefore, Order 20 Rule 11 is applicable to the facts of the case. 3. The question which arises for consideration is whether in a suit for sale in relation to a mortgage of immovable property, Order 20 Rule 11 can be invoked for directing the payment of money by instalments. 4. In United Bank of India vs. New Glencoe Tea Co., AIR 1987 Cal 143 , the Calcutta High Court has held: “In our opinion O 20 R 11 of the Code has its application to simple money decrees and not to decrees for sale of a property for realisation of money due. That provision on its own terms can have no application to a mortgage suit be it a suit on a mortgage in respect of immovable property or on a mortgage in respect of movables." (emphasis added) 5.
That provision on its own terms can have no application to a mortgage suit be it a suit on a mortgage in respect of immovable property or on a mortgage in respect of movables." (emphasis added) 5. Under Order 34 Rule 4, 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 (1) of Rule 2 of Order 34, and further directing that in default of the defendant paying as therein mentioned, the plaintiff shall be entitled to apply for final decree directing that the mortgage property or sufficient thereof to be sold. 6. In that view of the provisions of clauses (a), (b) and (c) (i) of sub-rule (1) of Rule 2 of Order 34, in a suit for sale, the preliminary decree shall mention the amount found under clause (a) and the amount declared due under clause (b), and the decree shall direct payment of the amount found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and counter signs the account taken under clause (a), or from the date on which such amount is declared in Court under clause (b), as the case may be. The decree shall also direct that in default of the defendant paying as mentioned in the decree, the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold. 7. Order 20 Rule 11(1), CPC, reads : "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 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 instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable." Under Order 20 Rule 11(1), where a decree is for payment of money, the Court may direct payment by instalments. Therefore, in a decree for payment of money in a money suit, the decree orders payment of money.
Therefore, in a decree for payment of money in a money suit, the decree orders payment of money. The preliminary decree in a suit for sale also orders payment of money, and only when the defendant fails to pay the amount mentioned in the decree within the time fixed by the Court, the plaintiff' is entitled to apply for final decree, and as such, in a suit for sale also the decree is basically for payment of money. This being the position, in so far as the order or direction for the payment of the mortgage-money, the provisions under Order 20 Rule 11, shall have its application depending on the facts of each case. Therefore, it cannot be laid down as general rule that the provisions under Order 20 Rule 11, cannot be applicable at all in a suit for sale in so far as the direction for payment of money. In that view of the matter, we, respectfully, are unable to agree with the decision of the Calcutta High Court, in so far as the payment of mortgage money is concerned. 8. Coming to the case on hand, if the defendant is allowed to pay the mortgage-money by instalments at the rate of Rs.3000/-per month, it will take more than four thousand months to discharge the debt, and, therefore, it will be against the principle underlying Rule 2(1) and/or Rule 4(1) of Order 34 for the reasons that Rule 2(1) read with Rule 4 contemplates that the payment of money must be within six months at the first instant or within the extended time. In that view of the matter, the judgment and decree of the Court below are liable to be set aside Considering the facts and circumstances of the case, especially when the suit was instituted in the year 1986, we are not inclined to allow the payment of mortgage-money be instalments. With regard to the interest, we decline to interfere with the findings of the Court below. 9. For the foregoing reasons, the appeal is partly allowed. The decree and judgment of the Assistant District Judge (2), Nagaon, in so far as the payment of mortgage-money by instalments is concerned, are set aside. The trial Judge shall prepare the preliminary decree afresh in the light of the above observations and direction. No costs.