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Prabhudas Uttamdas Vs. Lavar Bai Uji Wd/O Lavar Godad Atmaram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1962)3GLR919
AppellantPrabhudas Uttamdas
RespondentLavar Bai Uji Wd/O Lavar Godad Atmaram and ors.
Cases ReferredHarihar Prasad v. Gopal Saran A.I.R.
Excerpt:
- - further the entire wording of section 24 of the money-lenders act would clearly show that that section has no application where the decree passed is only a preliminary decree and not a final decree......decree-holder. there must be an amount of a decree. no doubt as provided in section 2 civil pro. code decree includes a preliminary decree. but the question is whether the preliminary decree directs any amount to be paid by the judgment-debtor to the decree-holder. in the case of a preliminary decree for sale in a mortgage suit there is no direction to pay any money. a preliminary decree takes account of the money due and provides for two contingencies namely the defendant paying the amount due and the defendant not paying the amount found due and declared due under the preliminary decree. this is in reality not a decree against any person although technically it is passed in a suit against the defendant. it is not a direction to the defendant to do anything. it does not direct the.....
Judgment:

V.B. Raju, J.

1. The applicant in this revision application challenges the order of Civil Judge Junior Division Chanasma granting installments after the passing of a preliminary decree in a mortgage suit and before the passing of a final decree. The order of installments was passed under Section 24 of the Money-Lenders Act and it is contended that this section has no application at the stage before the final decree is passed. It is however contended by the learned Counsel for the opponent that the word decree in Section 2 Civil Pro. Code includes a preliminary decree and that therefore the word decree in Section 23 of the Money-Lenders Act includes a preliminary decree. Section 24 of the Money-Lenders Act reads as follows:

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 circunistances of the judgment-debtor and the amount of the decree it considers fit.

2. Before this section can be applied there must be an application of a judgment-debtor. Notice must be given to the decree-holder. There must be an amount of a decree. No doubt as provided in Section 2 Civil Pro. Code decree includes a preliminary decree. But the question is whether the preliminary decree directs any amount to be paid by the judgment-debtor to the decree-holder. In the case of a preliminary decree for sale in a mortgage suit there is no direction to pay any money. A preliminary decree takes account of the money due and provides for two contingencies namely the defendant paying the amount due and the defendant not paying the amount found due and declared due under the preliminary decree. This is in reality not a decree against any person although technically it is passed in a suit against the defendant. It is not a direction to the defendant to do anything. It does not direct the defendant to pay any amount to the plaintiff. Moreover the parties are referred to in the preliminary decree as the plaintiff and the defendant as can be seen from Order 34 Rule 2 and Order 34 Rule 4 C.P. Code. Even at the time of a final decree in a suit for sale the parties are referred as plaintiff and defendant vide Order 34 Rule 5 and Form No. 5 A and Form No. 6 in Appendix D C. P Code. It is only after a final decree is passed that the parties can be described as judgment-debtor and decree holder. The words judgment-debtor and decree-holder are used in Section 24 of the Money-Lenders Act. For this reason it is also clear that Section 24 of the Money Lenders Act does not apply at the stage after the passing of a preliminary decree in a mortgage suit for sale of the mortgaged property and before a final decree is passed A preliminary decree fixes a date within six months from its date under Order 34 Rule 2 or under Order 34 Rule 4 C.P. Code. To pass an order for installments under Section 24 of the Money Lenders Act would therefore amount to preventing a final decree being drawn up under Order 34 Rule 2 or Order 34 Rule 4 C.P. Code. Under certain sections the word decree will have to be read as meaning decree capable of execution e.g. Order 21 Rule 2 C.P. Code vide Harihar Prasad v. Gopal Saran A.I.R. 1935 Patna 385 In Section 24 of the Money-Lenders Act also the word decree must be taken as one directing the payment of an amount and as one capable of execution A preliminary decree is not capable of execution. Further the entire wording of Section 24 of the Money-Lenders Act would clearly show that that section has no application where the decree passed is only a preliminary decree and not a final decree.

3. I therefore hold that the lower Court exercised its jurisdiction illegally in passing an order of installments after a preliminary decree as Section 24 of the Money Lenders Act did not give jurisdiction to the Court to do so. The revision application is therefore allowed with costs and the order of the lower Court is set aside the lower Court is directed to proceed to pass a final order as contemplated by the preliminary decree and as contemplated by Order 34 C.P. Code.


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