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K. Raman Dewaswam Chirayil Vs. Alleppey Central Coir Marketing Co-operative Society Ltd., Alleppey - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberA.S. No. 671 of 1961
Judge
Reported inAIR1964Ker264
ActsCode of Civil Procedure (CPC) , 1908 - Sections 51 - Order 20, Rule 11 - Order 21, Rules 39 and 40
AppellantK. Raman Dewaswam Chirayil
RespondentAlleppey Central Coir Marketing Co-operative Society Ltd., Alleppey
Appellant Advocate S. Bhoothalinga Iyer, Adv.
Respondent Advocate N. Parameswaran Moothathu, Adv.
DispositionAppeal dismissed
Cases ReferredV. P. Madhavan Nambiar v. Syrian Bank Ltd.
Excerpt:
- .....was drawn to the decision of the madras high court in v. p. madhavan nambiar v. syrian bank ltd., (s) air 1955 mad 409 wherein it has been held that it would be just and fair to pass an order for instalment payment in the first instance before the judgment-debtor is committed to prison. neither section 51 nor rules 39 and 40 of order xxi provide for any instalment payments. it is clearthat a decree for instalment payment can be passed only on consent of the decree-holder: sub-rule (2) of rule 11 of order 20. we doubt whether the court can direct in execution such instalment payment. we therefore dismiss this appeal. at the same time we make it clear that it is open to the judgment-debtor to raise the objection that he is not liable to be detained in prison. it is for the decree-holder.....
Judgment:

P. Govindan Nair, J.

1. We doubt whether a petition similar to the one moved by the appellant-judgment-debtor for instalment payment of the due amount is maintainable. Our attention was drawn to the decision of the Madras High Court in V. P. Madhavan Nambiar v. Syrian Bank Ltd., (S) AIR 1955 Mad 409 wherein it has been held that it would be just and fair to pass an order for instalment payment in the first instance before the judgment-debtor is committed to prison. Neither Section 51 nor Rules 39 and 40 of Order XXI provide for any instalment payments. It is clearthat a decree for instalment payment can be passed only on consent of the decree-holder: Sub-rule (2) of Rule 11 of Order 20. We doubt whether the Court can direct in execution such instalment payment. We therefore dismiss this appeal. At the same time we make it clear that it is open to the judgment-debtor to raise the objection that he is not liable to be detained in prison. It is for the decree-holder to make out, if he wants the judgment-debtor arrested, that the latter had the means to pay the decree amount and had refused or neglected to pay the same or to make out any of the other circumstances provided under Section 51 of the Code of Civil Procedure.

2. There will be no order as to costs.


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