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Pestonji Shapurji Narelwalla Vs. Jamshedji Nowroji Gamadia - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 80 of 1925 and Summary Suit No. 1592 of 1925
Judge
Reported in(1926)28BOMLR138; 94Ind.Cas.9
AppellantPestonji Shapurji Narelwalla
RespondentJamshedji Nowroji Gamadia
DispositionAppeal allowed
Excerpt:
civil procedure cede (act v of 1908), order xxxvii, rules 2(2), 4- order xx, rule 11(2)-summary suit-leave to defend-defendant who has obtained no have cannot ask for instalments at the time of passing of decree-instalments, grant of-procedure.;in a summary suit brought under the provisions of order xxxvii of the civil procedure code, the defendant, who has obtained no leave to defend, cannot appear at the hearing and ask the court to make the decretal amount payable by instalments.;the only way open to such a defendant is to apply for instalments either under order xx, rule 11(2), or under order xxxvii, rule 4, of the civil procedure code. - - at any rate, he will have the satisfaction of getting a decision on an interesting question of procedure. 3. that sub-rule (1) clearly..........be, as the judge remarks, that in an ordinary case where the defendant appears, the court first decrees payment for a certain sum in favour of the plaintiff, and then hears the defendant with regard to the question of instalments. but it still remains one proceeding. the hearing is not finished until a complete decree is passed directing, as the case may be, that the decretal amount should be payable at once or by instalments. the important point to notice is that the defendant in a summary suit cannot be allowed to appear while the hearing is proceeding, and in this case, in my opinion, the judge was wrong in allowing the defendant's attorney to appear before a decree had been passed in accordance with the plaint. thereafter he could have applied undar sub-rule (2), when the.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff filed a summary suit against the defendant to recover a sum of Rs. 25,000 with interest thereon on a hundi dated December 19, 1924. The defendant did not obtain leave from the Judge, as provided in Order XXXVII, Rule 3, to appear and to defend the suit. Accordingly under Sub-rule (2) of Rule 2, in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint should be deemed to be admitted and the plaintiff will be entitled to a decree. Order XXXVII contemplates, then, that the Court shall pass a decree in a summary suit where the defendant has obtained no leave to appear and defend, But in this case it seems that the defendant's attorney was allowed to appear to make an application for the stay of execution of the decree up to the following Diwali, or in the alternative for payment of the decree by instalments. An objection was raised at the time on behalf of the plaintiff that the defendant could not be heard as no leave had been obtained. The Judge, however, was of opinion that although the defendant could not be heard on the merits of the case, he might be heard on the question whether the decree should be made payable by instalments, Accordingly, after hearing the parties, the Judge made an order that the decretal amount should be payable by monthly instalments.

2. The plaintiff has appealed, although it is admitted that the decretal amount has already been paid. At any rate, he will have the satisfaction of getting a decision on an interesting question of procedure. Under Order XX, Rule 11, Sub-rule (1): ' Where and in so far as a decree is for the payment of money, the Court may for any sufficient reaaon at the time of passing the decree 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.

3. That Sub-rule (1) clearly contemplates that the application for instalments should be part of the hearing and an order made simultaneously with the decree. Ordinarily speaking then, a person who cannot appe ar at the hearing cannot be allowed to appear in order to apply for payment of the decretal amount by instalments.

4. Under Sub-rule (2) of Rule 11 of Order XX :-

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 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.

5. No order can be made under Sub-rule (2) except with the consent of the decree-holder, and that is a very important provision in his favour. It may be, as the Judge remarks, that in an ordinary case where the defendant appears, the Court first decrees payment for a certain sum in favour of the plaintiff, and then hears the defendant with regard to the question of instalments. But it still remains one proceeding. The hearing is not finished until a complete decree is passed directing, as the case may be, that the decretal amount should be payable at once or by instalments. The important point to notice is that the defendant in a summary suit cannot be allowed to appear while the hearing is proceeding, and in this case, in my opinion, the Judge was wrong in allowing the defendant's attorney to appear before a decree had been passed in accordance with the plaint. Thereafter he could have applied undar Sub-rule (2), when the decree-holder would have an opportunity of either consenting to the application or withold-ing his consent.

6. There is another way open to the defendant who has not obtained leave to appear and defend in a summary suit, He may, under Order XXXVII, Rule 4, ask the Court to grant him any of the reliefs mentioned therein.

7. The appeal will be allowed. The appellant is entitled to his costs of the appeal.

Coyajee, J.

8. I concur.


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