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Andhra High Court · body

2008 DIGILAW 320 (AP)

Seelam Ramadevi v. Gadiraju Yanadi Raju

2008-05-02

G.ROHINI

body2008
ORDER: This Civil Revision Petition is directed against the order dated 6.12.2007 in E.A.No.187 of 2007 in E.P.No.17 of 2007 in O.S.No.223 of 2004 on the file of the Court of the Junior Civil Judge, Rajampet. 2. The Revision petitioner is the decree-holder in whose favour a money decree dated 22.11.2006 was granted in O.S.No.223 of 2004. Pursuant thereto, she filed E.P.No.17 of 2007 under Order 21 Rule 37 of C.P.C. for execution of the decree by arrest and detention of the judgment-debtor in civil prison. In the said Execution Petition, the judgment-debtor/respondent herein filed E.A.No.187 of 2007 under Section 151 of C.P.C. with a prayer to grant installments at the rate of Rs.800/- per month. Though the decree-holder/Revision petitioner opposed, the said application was allowed by the Court below by order dated 6.12.2007 permitting the judgment-debtor to pay the decretal amount in installments at the rate of Rs.1,000/- per month. Aggrieved by the same, the present Civil Revision Petition has been filed by the decree-holder. 3. I have heard the learned counsel for both the parties and perused the material on record. 4. Whereas the learned counsel for the petitioner contended that since the Executing Court has no jurisdiction to allow discharge of decree in installments the order under Revision is illegal, the learned counsel for the respondent while seeking to justify the order under Revision submitted that since the judgment-debtor who is working as a Conductor in A.P. State Road Transport Corporation and drawing a meagre salary has no sufficient means to pay the decretal amount the Court below in exercise of its discretion has rightly ordered payment of the decretal amount in installments instead of directing arrest and detention of the judgment-debtor in civil prison. 5. The learned counsel for the respondent pointed out that the judgment- debtor had earlier filed C.R.P.No.2456 of 2007 before this Court against the order dated 11.6.2007 passed by the Court below in E.P.No.17 of 2007 ordering arrest of the judgment-debtor in realization of the decretal amount and that the said Civil Revision Petition was allowed granting liberty to the judgment-debtor to file the application before the Court below seeking grant of installments for paying the decretal amount. The learned counsel contended that since E.A.No.187 of 2007 was filed by the judgment-debtor in terms of the order of this Court in C.R.P.No.2456 of 2007, the order under Revision cannot be held to be without jurisdiction. 6. The material on record shows that E.P.No.17 of 2007 was initially allowed by the Court below by order dated 11.6.2007 directing arrest and detention of the judgment-debtor in civil prison. Questioning the said order, the judgment- debtor preferred C.R.P.No.2456 of 2007 contending that the Court below committed an error in ordering arrest without conducting enquiry as to the means of the judgment-debtor as provided under Order 21 Rules 37 & 38 of C.P.C. 7. Having found that no proper enquiry was conducted as to the means available with the judgment-debtor to pay the decretal amount, this Court set aside the order dated 11.6.2007 in E.P.No.17 of 2007 and allowed the Civil Revision Petition observing as under : "Since the impugned order directing issuance of warrant of arrest of the petitioner came to be passed without conducting enquiry as to the means available with the petitioner to pay the decretal amount and while the said enquiry is pending, the same is liable to be set aside. However, having regard to the stand taken by the petitioner that he is ready and willing to pay the decretal amounts, but in installments, I deem it appropriate to dispose of the C.R.P. with the following directions : The C.R.P. is allowed. The impugned order passed by the Court below is set aside. The petitioner is at liberty to file an application before the Court seeking grant of installments for paying the decretal amount, and if any such application is filed, the Court below shall consider the same and pass appropriate orders in accordance with law. No costs." 8. The above order shows that this Court while leaving it open to the judgment-debtor to file an application made it clear that such application if any filed shall be considered in accordance with law. Such observation by itself does not empower the Court to exercise the jurisdiction not conferred under law. Hence, in my considered opinion, the impugned order granting installments for payment of the decretal amount cannot be upheld merely on account of the liberty granted in the earlier round of litigation. Such observation by itself does not empower the Court to exercise the jurisdiction not conferred under law. Hence, in my considered opinion, the impugned order granting installments for payment of the decretal amount cannot be upheld merely on account of the liberty granted in the earlier round of litigation. As a matter of fact, this Court in C.R.P.No.2456 of 2007 made it clear that the application if any filed by the judgment-debtor seeking installments shall be considered in accordance with law. 9. Therefore, the question that requires consideration is whether the order under Revision passed by the Court below in execution proceedings is sustainable under law. 10. At the outset, Order 20 Rule 11 of C.P.C. which deals with payment of decretal amount in installments may be extracted hereunder : 11. Decree may direct payment by installments (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. (2) Order, after decree, for payment by installments - After the passing of any such decree the court may, on the application of the judgment debtor and with the consent of the decree holder, Order that payment of the amount decreed shall be postponed or shall be made by installments 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. 11. A plain reading of the above provision shows that an order for payment of amount decreed in installments can be made by the Court under sub-rule (1) of Rule 11 by incorporating the same in the decree itself. In other words, such power has to be exercised by the Court which passed the decree by incorporating in the decree itself. Sub-rule (2) of Rule 11 provides for making an order for payment by installments after passing of decree. However, such an order an be passed on an application made by the judgment-debtor only where the decree- holder consents for the same. 12. Sub-rule (2) of Rule 11 provides for making an order for payment by installments after passing of decree. However, such an order an be passed on an application made by the judgment-debtor only where the decree- holder consents for the same. 12. It is also relevant to note that Article 126 of the Schedule to the Limitation Act, 1963 prescribed the limitation of 30 days for making an application for payment of the decretal mount by installments. The said period of 30 days commence from the date of the decree. 13. Having considered the scope and object of the above provisions, it was held by a Division Bench of this Court in VEMULA SRINIVASA RAO v. THUMEPALLI VENKATESWARLU 2002 (1) ALD 169 = 2001 (6) ALT 791 , that if the Executing Court is empowered to permit payment of decretal amount by installments the purpose and object of the period of limitation of 30 days prescribed in Article 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 installments which is contrary to the provisions of Order 20 Rule 11 of C.P.C. Thus, it was concluded by the Division Bench that the Executing Court has no power to grant installments under the provisions of the Code of Civil Procedure. 14. The same has been reiterated in G. LAXMAIAH v. STATE BANK OF HYDERABAD, MADANAPURAM, MAHABOOBNAGAR 2005 (3) ALD 407 = 2005 (3) ALT 539 , holding that it is not at all competent for the Executing Court to grant installments during the course of execution and that such power can be exercised only by the Court which passed the decree. 15. In the instant case, admittedly the money decree in favour of the Revision Petitioner was passed on 22.11.2006 and it did not provide for payment of the amount decreed by installments. It is also not in dispute that the judgment- debtor/respondent herein did not make any application before the Court which passed the decree seeking payment of the decretal amount by installments within 30 days prescribed under Article 126 of the Limitation Act. He came up with such a request only in the month of October, 2007 before the Executing Court during the course of execution of the decree. He came up with such a request only in the month of October, 2007 before the Executing Court during the course of execution of the decree. In the light of the settled legal position noticed above such an application cannot be maintained before the Executing Court and therefore on that ground alone E.A.No.187 of 2007 is liable to be dismissed. 16. May be that, the judgment-debtor/respondent filed the application for grant of installments pursuant to the observations made by this Court in C.R.P.No.2456 of 2007, however it is relevant to note that it was made clear by this Court in the said order itself that the application if any made for installments shall be considered and appropriate orders shall be passed in accordance with law. Hence, the order of this Court in C.R.P.No.2456 of 2007 under no circumstances can be taken aid by the judgment-debtor/respondent to extend the period of limitation of 30 days much less to confer jurisdiction on the Executing Court. 17. Hence, in my considered opinion, the Court below committed grave error in allowing E.A.No.187 of 2007 permitting the judgment-debtor to pay the decretal amount in installments. 18. However, the learned counsel for the respondent while placing reliance upon a decision of the Supreme Court in JOLLY GEORGE VARGHESE v. BANK OF COCHIN AIR 1980 SC 470 , contended that in the absence of some element of bad faith on the part of the judgment-debtor the decree cannot be executed by arrest and detention in civil prison. There can be no dispute about the ratio laid down in the above decision, however the same is not applicable to the instant case since the question that arose for consideration is whether it is permissible for the executing court to grant payment of decretal amount by installments. 19. The learned counsel for the respondent while submitting that the judgment- debtor/respondent has no sufficient means to pay the amount further contended that since the facts and circumstances did not warrant execution of decree by arrest, the Court below was justified in granting installments. In support of the said submission, the learned counsel cited the decisions of this Court in C.A. SATTAR vs. L.C. AYUB 1997 (6) ALT 730 , A. SAMBASIVA RAO vs. RUDRU BHASKARA RAO 2003 (3) L.S. 119 = 2004 (1) ALD (NOC) 6 and K. VIJAYAKUMAR vs. N. GURURAJA RAO, 2004 (3) ALD 702 . 20. In support of the said submission, the learned counsel cited the decisions of this Court in C.A. SATTAR vs. L.C. AYUB 1997 (6) ALT 730 , A. SAMBASIVA RAO vs. RUDRU BHASKARA RAO 2003 (3) L.S. 119 = 2004 (1) ALD (NOC) 6 and K. VIJAYAKUMAR vs. N. GURURAJA RAO, 2004 (3) ALD 702 . 20. It is true that as held in the above decisions it is necessary for the Courts to examine whether the other modes of recovery are available to the decree-holder and whether it is absolutely necessary to order arrest for recovery of the decretal amount. 21. It is always open to the Court below to make such an enquiry taking into consideration the rival claims and the material produced by the parties and if the Court is satisfied, the execution petition for arrest may probably be dismissed. However the Court below which is the executing court cannot direct payment of decretal amount by installments since the said court is not competent to do so under law. 22. For the aforesaid reasons, undoubtedly the Court below exercised a jurisdiction not vested in it by law in passing the order under Revision. Hence, the order under Revision being illegal and unsustainable is hereby set aside and the Civil Revision Petition is allowed. No costs.