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2001 DIGILAW 1549 (AP)

Vemula Srinivasa Rao v. Thumepalli Venkateswarlu

2001-11-28

A.R.LAKSHMANAN, V.V.S.RAO

body2001
AR. LAKSHMANAN, J, J. ( 1 ) THE Judgment-debtor is the petitioner in this Revision. The Revision is filed against an order in E. P. 112 of 1998 in O. S. No. 142 of 1996 on the file of the Junior Civil Judge, macherla. The respondent decreeholder filed the said E. P. seeking arrest of the revision petitioner-judgment-debtor. After recording the evidence, the Court below came to the conclusion that the revision petitioner is liable for arrest for realisation of the decretal amount and by its order dated 16-10-2000 directed issuance of arrest warrant against the judgment-debtor. Challenging the said order, the present revision is filed. ( 2 ) IT was contended by the learned counsel for the judgment-debtor before the learned Single Judge that the relief of discharging the decretal debt by way of instalments at least could have been granted. Strong reliance in this regard was placed on the decision rendered by a learned Single judge of this Court reported in E. Murugaiah v. C. Ekambara Reddy1 which is to the effect that even in money decrees in execution, court shall order payment of decretal amount in instalments in suitable cases instead of ordering arrest. However, the learned referring Judge was of the opinion that in the light of the specific provisions of the Code of Civil Procedure granting such a relief to pay the decretal amount by way of instalments at the stage of execution may amount to virtually reviewing the judgment in the suit and that it is not permissible. The learned referring Judge was of the Opinion that the view expressed by the learned Single judge in the judgment reported in murugaiah s case1 requires reconsideration. That is how the learned Judge has referred the matter to this Division Bench framing the following question: (emphasis added)"whether the executing Court, in execution of money decrees has power to grant instalments under the provisions, of the Code of Civil procedure? ( 3 ) IN this context Order 20 Rule 11 of the code of Civil Procedure can be usefully referred to. ( 3 ) IN this context Order 20 Rule 11 of the code of Civil Procedure can be usefully referred to. It reads as follows: "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. (2) Order, after decree, for payment by instalments: After the passing of any such decree the Court may, on the application of the judgment-debtor and with the consent of the decreeholder, 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. " - ( 4 ) WHERE decree is for payment of money, the Court may for sufficient reason incorporate in the decree 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. The Court can exercise this power under Order 20 Rule 11 sub-clause (sic. sub- rule) (1) before the judgment after satisfying itself that sufficient reason had been shown for ordering payment of the money by instalments. Sub-clause (sic. sub-rule) (2) of order 20 Rule 11 enables the judgment- debtor to file an application for payment by instalments after the decree. The Court, after passing of any such decree, on the application of the judgment-debtor can order payment of the amount decreed by instalments on such terms as to the payment of interest etc. But the Court can exercise the power given to it under sub-clause (sic. sub- rule) (2) of Order 22 Rule 11 only after passing of the decree and that too with the consent of the decreeholder. ( 5 ) WE have perused the judgment delivered by K. B. Siddappa, J reported in murugaiah s case (supra ). But the Court can exercise the power given to it under sub-clause (sic. sub- rule) (2) of Order 22 Rule 11 only after passing of the decree and that too with the consent of the decreeholder. ( 5 ) WE have perused the judgment delivered by K. B. Siddappa, J reported in murugaiah s case (supra ). In our opinion, the said judgment will be of no assistance in deciding the reference in this Revision petition. The learned Judge allowed the revision filed by the judgment-debtor on the ground that there was no allegation made in the petition as is required in Proviso (b) to section 51 of the Code of Civil Procedure that the decreeholder demanded for payment of decretal amount and that the judgment- debtor refused to pay the same. This apart, there was no issue to that effect or any finding on that aspect. The learned Judge was, therefore, of the opinion that no case was made out for arrest of the judgment- debtor in that case on the peculiar facts and circumstances of the said case. We are, therefore, of the opinion that Murugaiah s case (supra) cannot be relied on as an authority for the proposition as to whether the executing Court in execution of the money decrees has power to grant instalments under the provisions of the Code of Civil Procedure. The issue is covered by a judgment of this Court rendered by lakshmana Rao, J (as he then was) reported in J. Krishnareddy v. B. Ramagopalaiah. The question for consideration in that revision was whether the executing Court has power to direct payment of decretal amount by instalments. The issue is covered by a judgment of this Court rendered by lakshmana Rao, J (as he then was) reported in J. Krishnareddy v. B. Ramagopalaiah. The question for consideration in that revision was whether the executing Court has power to direct payment of decretal amount by instalments. The learned Judge, after referring to order 20 Rule11 and relying upon certain other judgments on the subject was of the opinion that if the contention of the judgment-debtor that the executing 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 thiryt 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 Order 20 Rule 11 C. P. C. The learned Judge has also referred to a division Bench judgment of this Court in mahanarayana v. Vasudev. In the result, the learned Judge held, that the executing Court has no power to direct payment of decretal amount by instalments. ( 6 ) WE are in respectful agreement with the view expressed by the learned single judge in the judgment reported in krishnareddy s case (supra ). We, therefore, answer the reference accordingly and hold that the executing Court has no power to grant instalments under the provisions of the Code of Civil Procedure. We, however, make it clear that the Court which passes the decree may order instalments of the payment of the decretal amount after passing of the decree with the consent of the decreeholder. There are absolutely no merits in this revision. The revision, therefore fails and is dismissed.