1. The Office Note is coming up for orders in the following circumstances : This S.R. No. 26480 (the unnumbered C.M.A.) is sought to be filed against the order of the Subordinate Judge of Yellore, dated 26th July, 1957, in E.A.No. 642 of 1957 in O.S. No. 82 of 1956 on his file. The application in the Court below was filed under Order 20, Rule 11(2), Civil Procedure Code, praying to permit the petitioner to pay the decree amount in instalments at Rs. 1,000 per quarter. The lower Court passed on order directing payments of Rs. 2,000 per quarter commencing from 26th October, 1957, in default of which it was made clear that the concession extended would be withdrawn. The present appeal is sought to be preferred against that order of the Subordinate Judge.
2. The question for consideration posed by the office is whether a Civil Miscellaneous Appeal is maintainable as contended for by the advocate for the appellant under Section 47, Civil Procedure Code.
3. In regard to the request made by the judgment-debtor for payment of the sum by instalments there are two stages : one is before the decree is passed in which case any order passed regarding payment by instalments is appealable as it forms part of the decree.
4. The other stage is after the passing of the decree and Order 20, Rule 11(2), as unamended runs as follows:
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.
5. In such a case the order passed is a consent order and the consequence is that there could be no appeal from such consent orders. But so far as this High Court is concerned this rule has been amended and the amended Rule 11(2) of Order 20, Civil Procedure Code, runs thus :-
After the passing of any such decree the court may on the application of the judgment-debtor and after notice to the decree-holder order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms, etc.
6. In other words notice is given to the decree-holder and after hearing both sides judicial discretion is exercised and an order regarding payments by instalments, etc., is passed. Therefore this cannot be said to be a consent order from which no appeal could be filed.
7. In other words on principle under the Madras amendment the passing of an order exercising judicial discretion under Order 20, Rule 11(2), Civil Procedure Code, is subject to appeal. The point is concluded by authority. Vide Saya Hattie v. Ma Pwa Sa I.L.R.(1926) Rang. 24 : 97 I.G. 1037, and Maung Po Maik v. P.R.M.K.M. Kasi Chettiar A.I.R. 1931 Rang. 152, in which it has been held that such orders are appealable. The Nagpur High Court holds a similar view in Shree Jagruteswar Deostham v. Atmaram A.I.R. 1943 Nag. 437., where it has been held that orders passed under Order 20, Rule 11(2), Civil Procedure Code, as amended on the Madras lines are appealable under Section 47, Civil Procedure Code.
8. The Office Note is answered accordingly, namely, that a Civil Miscellaneous Appeal lies against the order of the Subordinate Judge in the present case under Section 47, Civil Procedure Code.
9. I thank the learned Government Pleader for placing all the relevant authorities before me to give a considered decision on the subject.