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Shriram Chits and Investments (P.) Ltd., Represented by Its Executive Director Vs. S. Padmanaban and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1981)1MLJ472
AppellantShriram Chits and Investments (P.) Ltd., Represented by Its Executive Director
RespondentS. Padmanaban and ors.
Excerpt:
- .....a. nos. 1674 of 1980 and 1674 of 1980 in e.p. no. 33 of 1980, purporting to be under section 151, civil procedure code, praying for an extension of time to pay the balance of the decree amount in 10 months and also for raising the order of attachment ordered in e.p. no. 33 of 1980. those applications were opposed by the petitioner. even so the executing court granted six month's time to the respondents herein to pay the decree amount and consequently, directed the raising of the order of attachment ordered in e.p. no. 33 of 1980. it is the correctness of this that is challenged in these civil revision petitions by the decree-holder.2. what is urged by the learned counsel for the petitioner is that since at the time when the decree was passed in the present case on 7th february, 1978,.....
Judgment:
ORDER

V. Ratnam, J.

1. The decree-holder in O.S. No. 7689 of 1976, 10th Assistant Judge, City Civil Court, Madras, is the petitioner in these Civil Revision Petitions. A decree was obtained on 7th February, 1978, for a sum of Rs. 6,692 by the petitioner against: the respondents herein and in order to realise the amount due under the decree, the petitioner, on 10th December, 1979, filed an application for execution as well in E.P. No. 33 of 1980. While so, on 21st March, 1980, two applications were filed by the respondents herein E. A. Nos. 1674 of 1980 and 1674 of 1980 in E.P. No. 33 of 1980, purporting to be under Section 151, Civil Procedure Code, praying for an extension of time to pay the balance of the decree amount in 10 months and also for raising the order of attachment ordered in E.P. No. 33 of 1980. Those applications were opposed by the petitioner. Even so the executing Court granted six month's time to the respondents herein to pay the decree amount and consequently, directed the raising of the order of attachment ordered in E.P. No. 33 of 1980. It is the correctness of this that is challenged in these civil revision petitions by the decree-holder.

2. What is urged by the learned Counsel for the petitioner is that since at the time when the decree was passed in the present case on 7th February, 1978, the respondents did not pray for any time for payment of the decree amount, any such order permitting the payment of the decree amount in instalments by the respondents-judgment-debtors can be passed later only with the consent of the petitioner/decree-holder are not having been so done in the present case, the order permitting the respondents to pay the decree amount in six month's time is illegal. On the other hand, the learned Counsel for the respondents would contend that it would be a matter for the Court to decide whether an instalment payment should be granted even after the decree or not and that in the present case, the Court has considered all the circumstances of the case and permitted the respondents to pay the decree amount by granting six month's time and also by raising the attachment and that such an order is perfectly justified by the circumstances of the case and does not deserve, to be interfered with (sic) revision. Whatever might have been the position prior to the amendment of the Code of Civil Procedure by Act CIV of 1976, now under Order 20, Rule 11(2), the Court after the passing of the decree is empowered to pass an order directing the payment of the decree amount in instalments on an application by the judgment-debtor and with the consent of the decree-holder and 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 the Court thinks fit. Section 97(1) of Act CIV of 1976 declares that any amendment made, or any provision inserted in the principal Act by the High Court before the commencement of Act CIV of 1976, except in so far as the amendment or provision is consistent with the provisions of the Principal Act as amended by Act CIV of 1976 of the Civil Procedure Code shall stand repealed. Section 97(2) of Act CIV of 1976 which saves the applicability of some of the provisions introduced by Act CIV of 1976 does not include Order 20, Rule 11 of the Code of Civil Procedure. Section 97(3) of Act CIV of 1976 declares that except as otherwise provided in Sub-section (2), the provisions of the Principal Act viz., the Civil Procedure Code as amended by Act CIV of 1976 snail apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement In the present case, the proceedings, out of which the Civil Revision Petitioners arise, have been instituted in 1980 long after the coming into force of the provisions of Act CIV of 1976 and consequently, the amended provision of Order 20, Rule 11(2), Civil Procedure Code, would apply to the instant case. Though the judgment-debtors had nude an application for a direction that the decree amount should be made payable by instalments, yet, the petitioner, or the decree holder, had opposed the same and therefore, in the present case, the decree-holder has not consented to the payment of the decree amount in instalments, which is a vital condition as per the amended provision, in the absence, therefore, of consent on the put of the petitioner, the Court below acted with material irregularity in extending the time for payment of the balance of the decree amount in six instalments. That order does not conform to the requirements of Order 20, Rule 11(2) of the Code of Civil Procedure as amended and has, therefore, to be set aside. Consequently, the order raising the attachment has also to be set aside. The result is, the orders passed by the executing Court in E.A. No. 1674 of 1980 and 1672 of 1980 in E. P. No. 33 of 1980 in O.S. No. 7689 of 1976 are Set aside and E.A. No. 1674 of 1980 and 1672 of 1980 are dismissed. The Civil Revision Petitions are allowed. No costs.


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