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Balaji Bhawanrao Vs. Datto Ramchandra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 31 of 1907
Judge
Reported in(1907)9BOMLR1026
AppellantBalaji Bhawanrao
RespondentDatto Ramchandra
Excerpt:
dekkhan agriculturists' relief act (xvii of 1879), section 15b-decree-instalments.;section 15b of the dekkhan agriculturists' relief act gives a discretionary power to the court to make the decretal amount payable by instalments in the course of any proceeding in execution of a decree for redemption, foreclosure or sale. the power can be exercised by the court suo motu; and at any time in the course of a proceeding. it is a power not subject to limitation. - - 'a creditor has no inherent right to have his debt satisfied by means of a levy by the sheriff......by instalments, upon the ground that the application was made too late. it is not clear what the subordinate judge means by the application being made 'too late'-whether he thinks that the application is barred by limitation under article 175, schedule ii of the limitation act, or that it is made at a late stage of the case. if the former is the meaning, section 15 (b) of the dekkhan agriculturists' relief act gives a discretionary power to the court to make the decretal amount payable by instalments in the course of any proceeding in execution of a decree for redemption, foreclosure or sale. here, as is admitted before us by the respondent's pleader, there is a decree absolute for sale, but the property has not been sold by the court in execution of it and therefore it has not gone.....
Judgment:

Chandavarkar, J.

1. The Subordinate Judge has disposed of this application, for modification of the decree by making the decretal amount payable by instalments, upon the ground that the application was made too late. It is not clear what the Subordinate Judge means by the application being made 'too late'-whether he thinks that the application is barred by limitation under Article 175, Schedule II of the Limitation Act, or that it is made at a late stage of the case. If the former is the meaning, Section 15 (b) of the Dekkhan Agriculturists' Relief Act gives a discretionary power to the Court to make the decretal amount payable by instalments in the course of any proceeding in execution of a decree for redemption, foreclosure or sale. Here, as is admitted before us by the respondent's pleader, there is a decree absolute for sale, but the property has not been sold by the Court in execution of it and therefore it has not gone out of the hands of the mortgagor. He has still an equity of redemption. All that has happened is that there being a decree absolute for sale, the property may be sold by the Court. Under the circumstances the Court has the power even suo moto to make an order for payment by instalments. Mr. Rele contends that the Court's power can be exercised only on an application by the judgment-debtor but the language of the section does not warrant any such construction. And having regard to the policy and scheme of the Act, viz. that it is intended for the relief of indebted agriculturists, we do not see any valid reason for construing the section in that narrow way by importing into it words which are not to be found there. If, then, the Court has power to order the amount to be paid by instalments at any time in the course of a proceeding, it is a power not subject to limitation. Article 175 of Schedule II to the Limitation Act has, therefore, no application here. If, on the other hand, the Subordinate Judge meant to hold that the appellant asked at a very late stage of the case for an order to pay by instalments, we think he has not exercised his discretion under Section 15B, according to sound judicial principle. The Act empowers him to pass such an order at any time provided there is a proceeding pending. In such a case the question is whether the judgment-debtor, being an indebted agriculturist, is able or not to pay the whole decretal amount at once.

2. Then it is urged by Mr. Rele that as when the decree in this suit was passed, the Dekkhan Agriculturists'Relief Act was not in force, his client had a right to recover the whole amount of the decree and that its application cannot have retrospective effect so as to take away rights previously possessed. The answer to that is 'executions are a part of the machinery by which debts are recovered and are subject to regulation by' Acts of the Legislature. 'A creditor has no inherent right to have his debt satisfied by means of a levy by the Sheriff. The execution is a mere creature of the law which may determine or regulate the rights to which it gives rise.' Attorney General of Ontario v. Attorney General of Canada [1894] A.C. 198. The application here made was that the Court should direct how the debt shall be paid in execution of its decree. Such direction, affecting mere procedure, involved no question of right. The Subordinate Judge has not gone into the question whether the respondent is an agriculturist. We must, therefore, reverse the order of the Subordinate Judge and direct him to rehear the application according to law. He must first determine the question whether the appellant is an agriculturist. If he is, then the application should be disposed of on the merits. Costs to abide the result.


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