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Laxman Dhulshet Narayanpure Vs. Ganpat Nata Shete - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Reference No. 3 of 1959
Judge
Reported in(1959)61BOMLR1591
AppellantLaxman Dhulshet Narayanpure
RespondentGanpat Nata Shete
Excerpt:
bombay money-lenders act (bom. xxxi of 1947), section 24-court-fees act (vii of 1870), schedule ii, item 17(vii)-civil procedure code (act v of 1908), sees. 2(2), 47, 104; order xliii, order xx, rules 12, 11(2)-whether order under section 24 of bom. act xxxi of 1947 appealable-proper court-fee leviable on memorandum of appeal from such order.;an order under section 24 of the bombay money-lenders act, 1946, granting or refusing to grant instalments for the payment of the amount decreed, is appealable as a decree. the proper court-fee to be levied on a memorandum of appeal from such an order would be the court-fee mentioned in schedule ii, item 17(vii), of the court-fees act, 1870, as amended in the bombay state.;the subject-matter in dispute in such an appeal is not the amount of the..........of a particular judgment-debtor. we might have accepted this argument if section 24 of the bombay moneylenders act were merely declaratory of the rights of judgment-debtors in the execution of decrees to which that section applies. in that case it would have been the duty of an executing court to consider the rights of the judgment-debtor so declared by the legislature and to execute the decree accordingly. the wording of section 24, however, shows that it is not merely declaratory. it empowers the court todirect that the amount of any decree...shall be paid in such number of instalments land subject to such conditions and payable on such dates, as...it considers fit.section 24 enables the court to give a direction, and the direction so given may itself be executable it must, therefore,.....
Judgment:

Tarkunde, J.

1. This reference has been made by the Taxing Officer under Section 5 of the Court-fees Act, and the learned Chief Justice has directed us to decide the question so raised. The question relates to the Court-fees chargeable on four appeals, each arising from an order passed under Section 24 of the Bombay Money-lenders Act, 1946. In three of the four cases, applications filed by judgment debtors under Section 24 of the Act for making the decretal amounts payable by instalments were rejected by the Courts below. In the fourth case, the application of the judgment-debtor was partially granted and the judgment-debtor has come in appeal on the ground that the relief granted to him was inadequate. The Taxing Officer was of the view that no appeal could be filed from a decision under Section 24 of the Bombay Money-lenders Act and that the appellants in the four appeals may, if they so desired, convert the appeals into civil revision applications and that Court-fees may then be levied on that basis. The Taxing Officer, however, felt that the question involved was of general importance and hence he made this reference.

2. The question raised by the Taxing Officer is not free from difficulty. Section 24 of the Bombay Money-lenders Act, 1946, is in the following terms:-

Notwithstanding anything contained in the Code of Civil Procedure, 1908, the Court may, at any time, on application of a judgment-debtor, after notice to the decree-holder, direct that the amount of any decree passed against him, whether before or after the date on which this Act comes into force, in respect of a loan, shall be paid in such number of instalments and subject to such conditions, and payable on such dates, as, having regard to the circumstances of the judgment-debtor and the amount of the decree, it considers fit.

The Bombay Money-lenders Act does not provide any appeal from an order granting or rejecting an application under Section 24. If the order is one not amounting to a decree, it is obviously not appealable, as it is not covered by Section 104 and Order XLITI of the Code of Civil Procedure. An appeal from the order can be maintained only if the order is a 'decree' as denned by Section 2(2) of the Code. That definition is in two parts. The first part defines 'decree' as. the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.

The second part of the definition includes in the term 'decree' orders which may otherwise not be decrees. This part, so far as it is material, says that the term 'decree' 'shall be deemed to include...the determination of any question within Section 47....' An order under Section 24 of the Bombay Money-lenders Act can be held to be a decree either if it determines a question relating to the execution, discharge or satisfaction of a decree under Section 47 of the Code, or if it comes within the first part of the definition of the word 'decree'. On behalf of the appellants in the four appeals, Mr, Paranjape and Mr. Adik urged that an order under Section 24 of the Bombay Money-lenders Act is a determination of a question within Section 47 of the Code and, alternatively, that it amounts to a decree according to the first part of the definition of that term.

3. We will deal first with the first of these alternative arguments. The Taxing Officer was of the view that a judgment-debtor seeking a direction under Section 24 of the Bombay Money-lenders Act seeks in effect a partial modification of the decree passed against him, and that, therefore, an order passed by the Court either allowing or rejecting his application cannot be regarded as an order relating to the execution, discharge or satisfaction of that decree. This view of the Taxing Officer assumes what undoubtedly is the general rule, namely, that an executing Court will execute a decree as it is, without any modification or qualification. Nothing, however, prevents the Legislature from modifying or qualifying the rights of decree-holders in executing the decrees passed in their favour. If the Legislature passes an enactment which limits the decretal rights of a decree-holder, the executing Court is bound to execute the decree subject to the limitations so placed by the Legislature. The Legislature may prevent decrees from being executed against certain classes of property (e.g. Section 10, Bombay Hereditary Offices Act, 1874) ; it may provide that no process shall be issued against certain classes of judgment-debtors for a specified period (e.g. the Bombay Small Holders Relief Act, 1938). Instances of this type are not few. An executing Court is required to execute the decree in accordance with the prevailing law3 and an order passed by the executing Court on whether the decree under execution is limited or otherwise qualified by a legislative enactment does not cease on that account to be an order under Section 47 of the Code. It was argued before us by Mr. Paranjape that an order which is passed by the Court under Section 24 is an order of this nature. The Legislature, according to him, provided a qualification to the rights of the decree-holder in the case of decrees passed on loans, and it is well within the function of the executing Court to decide whether the qualification imposed by the Legislature was available in favour of a particular judgment-debtor. We might have accepted this argument if Section 24 of the Bombay Moneylenders Act were merely declaratory of the rights of judgment-debtors in the execution of decrees to which that section applies. In that case it would have been the duty of an executing Court to consider the rights of the judgment-debtor so declared by the Legislature and to execute the decree accordingly. The wording of Section 24, however, shows that it is not merely declaratory. It empowers the Court to

direct that the amount of any decree...shall be paid in such number of instalments land subject to such conditions and payable on such dates, as...it considers fit.

Section 24 enables the Court to give a direction, and the direction so given may itself be executable It must, therefore, follow that the court, while exercising the power under Section 24, does not merely act as an executing Court, does not merely consider the prevailing law as it applies to the execution of decrees already passed, but decides whether positive directions should be given in partial supersession of the terms of decrees previously passed. Such an order cannot, therefore, be regarded as a determination of a question within Section 47 of the code of Civil Procedure.

4. Turning next to the second alternative argument, an order under Section 24 of the Bombay Money-lenders Act would be a decree according to the definition of the term 'decree' in the first part of Section 2(2) of the Code, if it amounts to was. adjudication of 'the rights of the parties with regard to all or any of the matters in controversy in the suit'. The definition makes it clear that the adjudication need not be of all the matters in controversy in the suit in order that it may be a decree. Now, in a suit based on a 'loan' as defined by the Bombay Money-lenders Act, one of the matters in controversy between the parties is the time before which and the manner in which the amount which may be found due to the plaintiff shall be paid by the defendant. An Order 1 under Section 24 is an adjudication which determines this matter in controversy between the parties to the suit. It is true that an application under Section 24 is. necessarily filed after a decree in such a suit has already been passed by the Court, and as a rule the decree provides, expressly or by implication, the time within which the judgment-debtor must satisfy it. There is, however, no difficulty in treating an application subsequently filed by the judgment-debtor under Section 24 of the Bombay Money-lenders Act as an application filed in the suit itself. This is because the finality of the original decree, in so far as the decree relates to the time of payment of the decretal amount, is qualified by the Legislature and made dependent on an order which may subsequentiy be passed by the court under Section 24. In this connection, it would be legitimate' to compare an order under Section 24 of the Bombay Money-lenders Act with an order on an application of the decree-holder for ascertainment of mesne profits filed after the passing of a decree under Order XX, Rule 12, of the Code. The application of the decree-holder in the latter case is regarded as an application in the suit, and the order of the Court awarding a specific amount of mesne profits to the decree-holder is deemed to be a decree and is appealable as such. The only substantial difference between such an order and an order under Section 24 of the Bombay Money-lenders Act is that, whereas a direction for the ascertainment of mesne profits is contained in the very decree passed under Order XX, Rule 12, a direction for determining the time of payment is given by the Legislature in Section 24 of the Bombay Money-lenders Act. We do not think that this difference can justify the view that an order under Section 24 is any the less a decree than an order awarding a specific amount of mesne profits made after a decree passed under Order XX, Rule 12.

5. It may be added that, in our view, an order under Section 24 of the Bombay Moneylenders Act is decree even if it is an order rejecting the application, so that the order leaves the original decree unaffected. This is because, in our view, an application under Section 24 is not an application for the amendment of the original decree. The application seeks a fresh decision of the Court on the question whether the decretal amount should or should not be made payable by instalments and whether its payment should be subject to any conditions. Being a fresh decision on one of the matters in controversy in the suit, the order is appealable whether the application is rejected or allowed.

6. None of the cases cited before us deals directly with the question which we have to decide. In Zaverchand Panaji v. Mayadevi (1955) 58 Bom. L.R. 619 Bavdekar J. held that an order under Section 24 of the Bombay Money-lenders Act can be made only by the Court which passed the decree and not by the Court to which the decree is transferred for execution. This decision does not necessarily support the conclusion, to which we have reached on other grounds, that such an order is not a determination of a question under Section 47 of the Code. This is because even in matters which clearly relate to the execution, discharge and satisfaction of a decree, some orders can be made only by the Court which passed the decree and not by a Court to which the decree is transferred for execution. A similar decision was given by a Full Bench of the Nagpur High Court in Bilimoria v. Central Bank of India Ltd., Bombay [1944] Nag. 1 That case arose unders. 11 of the Central Provinces Money-lender Act, which is in pari material with Section 24...of the Bombay Money-lenders Act. The Full Bench held that the word 'Court' used in Section 11 of the Central Provinces Act refers to the Court which passed the decree, and not to the Court to which the decree is transferred for execution. It may be noted that Section 11 of the said Act specifically provides that an order passed thereunder 'shall be deemed to have been passed under Section 47 of the Code of Civil Procedure.'

7. In Promode Nath Singha Ray v. Rasheswari Dasi [1941] 2 Cal. 402 a Division Bench of the Calcutta High Court held that an order under Section 36, Sub-section (6), of the Bengal Money-lenders Act, 1940, either granting or refusing a prayer for reopening a decree, does not come under Section 47 of the Code of Civil Procedure and is not appealable as such. It was unfortunately not possible for us to see the provisions of the Bengal Act, and particularly the wording of Section 36 thereof. It appears from the judgment in the above case, however, that Section 36 of the Bengal Act is materially different from Section 24 of the Bombay Act. Section 36 of the Bengal Act apparently provides for the formal reopening of a former decree and the passing of a new decree. The Division Bench held that, if an application under Section 36 of the Bengal Act results in the passing of a new decree, an appeal lies from the new decree, but that no appeal lies directly from the order passed on the application under Section 36. The judgment shows that the only argument which was advanced before the Court in favour of the appealability of an order under Section 36 was that the order determines a question relating to the execution, discharge or satisfaction of a decree within Section 47 of the Code. The Court did not consider the question whether such an order determines the rights of the parties with regard to a matter in controversy in the suit itself and is a decree within the first part of the definition of that term in Section 2(2) I of the Code.

8. The decision in Dhanukdhari Singh v. Bamratan Singh I.L.R. (1040) Pat. 862 proceeds on a different basis. The ease arose under Section 11 of the Bihar Moneylenders (Regulation of Transactions) Act, 1939, which it appears empowers an executing Court to grant instalments for the payment of amounts previously decreed. A dvision Bench of the Patna High Court held in that case that an order under Section 11 of the Bihar Act is hot a decree within Section 47 read with Section 2(2) of the Code of Civil Procedure, and is not, therefore, appealable. The learned Judges observed that every order passed in the course of execution proceedings is not necessarily a decree so as to be appealable, and that, in order to be a decree, it must in some way finally determine the rights of the parties with regard to all or any of the matters in controversy. The main judgment delivered in the case went on to say (p. 366) :.The right of the decree-holder to be paid the decretal amount and the liability of the judgment-debtor are determined by the decree in the suit. The power conferred on the executing Court by Section 11 of the Money-lenders Act is a discretion which the Court may exercise in derogation of the rights of the decree-holder to execute the whole of his decree immediately against the judgment-debtor. In deciding whether it shall 6r shall not exercise the discretion conferred upon it by this section the Court is not determining any question of parties' right but merely weather an indulgence shall be show to the judgment-debtor for the purpose of enabling him to meet the just demands of the decree-holder and at the same time avoid the forced sale of his own properties.

On this view, an order granting or refusing to grant instalments would not be appealable as a decree, because it would not be covered by either of the two-parts of the definition of 'decree' in Section 2(2) of the Code of Civil Procedure. With great respect, we do not agree with the view which appears to be implicit in the passage quoted above, that a decision given by the Court in the exercise of its discretion does not amount to a final determination of the rights of the parties with regard to a matter in controversy in the suit. If the time within which the plainliff's dues, shall be paid by the defendant is one of the matters in controversy between the parties to the suit, the fact that the Court exercises a discretion in deciding that question will not prevent the decision from being a decree. In a suit for specific performance, for instance, the decision of the Court is given in the exercise of its discretion, but the decision is a decree nonetheless.

9. A reference may next be made to certain decisions relating to the appeal-ability of orders passed under Order XX, Rule 11(2), of the Code of Civil Procedure. Order XX, Rule 11(2), provides that, after the passing of a money 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. Since an order under Order XX, Rule 11(2), requires the consent of the decree-holder, it would normally be not appealable. The rule, however, was amended by the Rangoon and Nagpur High Courts so that an order thereunder could be passed after hearing the parties, but without the consent of the decree-holder. It will be noticed that Order XX, Rule 11(2), so amended, is very similar to, though more restricted than, Section 24 of the Bombay Money-lenders Act. In Saya Hattie v. Ma Pwn Sa. I.L.R. (1926) Ran. 247 a Judge of the Rangoon High Court, sitting singly, held that an order under the above amended provision was one relating to the execution, discharge or satisfaction of a decree and was, therefore, appealable as a decree. While we agree, with great respect, that such an order is a decree and is appeal-abla, we do not think that it determines a question relating to the execution, discharge or satisfaction of the original decree. The above decision was followed in several subsequent decisions of the Rangoon High Court. In Shree Jagrutesh-war Deosthan v. Atmaram. [1943] Nag. 456 Bose J., sitting singly, held that an order under the above amended provision granting or refusing to grant instalments for the payment of the decretal amount, is appealable. The learned Judge observed (p. 457) :.It seems to me that whether the order be regarded as one under Section 47 or as a decree in itself because it affects the decree, it must be appealable.

With great respect, we agree with the second alternative mentioned in this observation.

10. We, therefore, hold that an order under Section 24 of the Bombay Money-lenders Act, granting or refusing to grant instalments for the payment of the amount decreed, is appealable as a decree. The proper Court-fee to be levied on a memorandum of appeal from such an order would be the Court-fee mentioned in Schedule II, items 17 (vii), of the Court-fees Act, as amended in the Bombay sate. The subject-matter in dispute in such an appeal' is not the amount of the decree, but mode in which the amount is to be paid. As such, it is not possible to estimate at a money value the subject-matter in dispute. A similar view on the Court-fee payable in such cases was taken in Sitabai v. B.S.R.B. Abhyankar. [1938] Nag. 423

11. Our decision on the reference, therefore, is that the Court-fee to be charged on the memoranda of appeal in the four appeals will be Rs. 18-12-0 each, as provided in Schedule II, item 17 (vii), of the Court-fees Act.


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