Skip to content


K.C.D. Swamy Vs. Leela Marathey and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 1620 and 1621 of 1970
Judge
Reported inAIR1971Kant251; AIR1971Mys251; (1971)1MysLJ305
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115; ;Mysore Money Lenders Act, 1962 - Sections 27; Debt Laws
AppellantK.C.D. Swamy
RespondentLeela Marathey and anr.
Respondent AdvocateM.L. Venkatanarasimhaiah, Adv.
Disposition Petition dismissed
Excerpt:
.....by making good the deficit duty and paying the penalty cannot be admitted in evidence and cannot be relied upon - an illustration has been mentioned in the judgment of the bombay high court referred to above that it is just like an application under order xx......court of bombay considered the question as to whether an appeal lies and the view taken by the bombay high court is that an appeal is maintainable. the relevant portion of the judgment of their lordships of the bombay high court is given below:-- 'an order under section 24 cannot be regarded as a determination of a question relating to the execution, discharge or satisfaction of a decree under section 47 of the code.' 'an order under section 24 is a decree even if it is an order rejecting the application, so that the order leaves the original decree unaffected. this is because, 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 one of the matters in controversy in suit, viz., on the.....
Judgment:
ORDER

H.B. Datar, J.

1. These two revision petitions arise out of two applications filed in Ex. 48/70 and 49/70, arising out of O. S Nos. 73 and 74/67, on the file of the Court of the Civil Judge. Civil Station. Bangalore. Both the decrees are consent decrees and the execution of these decrees is sought.

2. Applications were filed in the said execution cases, viz., I. A. II in C. R. p. 1620/70 and I. A. III in C. R. P. 1621 of 1970, under the provisions of Section 27 of the Mysore Money Lenders Act, praying for the modification of the decree and requesting that the amount be directed to be paid by instalments. The learned Civil Judge considered both the applications and has dismissed them holding that the judgment-debtor cannot ask the Court below to pass an ordergranting relief under Section 27, in the absence of the consent of the decree-holder. It is against these two orders dismissing the applications under Section 27 of the Mysore Money Lenders Act that the present two revision petitions have been filed before this Court.

3. Sri M. L. Venkatanarasimhaiah, learned Counsel for the respondent, raised a preliminary objection that the Present revision petitions are not maintainable and that the only remedy available to the petitioners, if any, is to file an appeal before the appropriate Court. In support of his submission, he has relied on a judgment of the High Court of Bombay in AIR 1960 Bom 334, State of Bombay v. L. D. Naranayanapure.

4. Under Section 115, Civil P. C, the High Court has no jurisdiction to entertain the revision petition in cases in which an appeal lies. If an appeal is maintainable against the order passed by the Court below, then the present revision petitions filed by the petitioner will have to be dismissed as being not maintainable in law. Section 27 of the Mysore Money Lenders Act (Mysore Act No. 12 of 1962), 1961, reads as under :--

'27. Power of Court to direct payment of decretal amount by installments: 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 installments 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.' Section 24 of the Bombay Money Lenders Act reads:--

'24. Power of the Court to direct payment of decretal amount by installments.

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 installments 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 High Court of Bombay considered the question as to whether an appeal lies and the view taken by the Bombay High Court is that an appeal is maintainable. The relevant portion of the judgment of their Lordships of the Bombay High Court is given below:--

'An order under Section 24 cannot be regarded as a determination of a question relating to the execution, discharge or satisfaction of a decree under Section 47 of the Code.'

'An order under Section 24 is a decree even if it is an order rejecting the application, so that the order leaves the original decree unaffected. This is because, 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 one of the matters in controversy in suit, viz., on the question whether the decretal amount should or should not be made payable by installments and whether its payment should be subject to any conditions.'

5. The provisions of Section 24 of the Bombay Money Lenders Act and 27 of the Mysore Money Lenders Act are similar. Therefore, I am in respectful agreement with the view taken by the Bombay High Court and hold that an appeal does not lie under Section 47 but an appeal lies as if it is a decree.

6. An application filed under Section 27 of the Act, whether it is filed in the suit or in the execution proceedings, is an application in the suit itself as what is being sought is an order making the amount payable in certain installments. An illustration has been mentioned in the judgment of the Bombay High Court referred to above that it is just like an application under Order XX. Rule 12, Civil P. C. for the ascertainment of mesne profits. Therefore, an application under Section 27 seeks a fresh decision of the Court on the question whether the decretal amount should or should not be made payable by installments and whether the payment should be subject to any conditions. Being a fresh decision on one of the matters in controversy in the suit, the order is appeal able whether the application is rejected or allowed.

7. For the aforesaid reasons, the present revision petitions are not maintainable in law. Accordingly, they are dismissed. No costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //