P.N. Mookerjee, J.
1. This appeal is by the defendants and it arises out of a suit for money for recovery of a sum of Rs. 16,000/- due on a Hatchita. The suit was filed on 26-8-1948. It was originally contested on various grounds and a number of issues were framed on 17-3-1948. Eventually, however, on24-8-1949, the parties agreed to refer their disputes to two named Arbitrators Sri Dibakar Konar and Sri Kamala Charan Goswami, both pleaders of the local Bar. The Arbitrators made their award on25-2-1950, and the award was in favour of the plaintiff for a total sum of Rs. 14,000/- including costs.
2. Prior to this date, however, on 23-2-1950, the defendants had made a prayer before the Court for payment of their dues, if any, by certain instalments. They also filed simultaneously an application before the Court for giving directions to the Arbitrators to consider this question of instalment. On the next date, the plaintiff filed objections to the defendants' above prayer and the defendants also renewed their prayer for instalments before the Arbitrators. The Court on that occasion reserved orders on the defendants' prayer and the plaintiff's objections until receipt of the award. Thereafter, as we have already said, on 25-2-1950, the award was made by the Arbitrators in favour of the plaintiff for a total sum of Rs. 14,000/- including costs and, in that award, the Arbitrators expressly stated that they could not consider the defendants'-prayer for instalments, as it was, in their opinion, not within their terms of reference.
3. On 8-3-1950, the defendants made a fresh application before the Court for instalments under Order 20, Rule 11, Civil P. C. and Section 151. The entire matter was eventually hoard by the Court on 30-3-1950 and, on April 4 following, the Court delivered judgment accepting the award and refusing the defendants' prayer for instalments upon the view that, as the matter had been referred to arbitration, the Court had no power to add to the award of the Arbitrators and grant instalments to the defendants. The decree followed upon this judgment and from this decree the present appeal way preferred by the defendants on 8-5-1950.
4. A preliminary objection was raised to the competency of the present appeal on behalf of theplaintiff respondent and the contention was that, as the decree in the present case was based on the award and was strictly in accordance or conformitywith it and actually in terms of it, there was no appeal provided in law from that decree. Reliance for this purpose was placed upon Section 17, Indian Arbitration Act. Reference was also made to Sections 39 and 41 of the said Act.
5. The matter is not altogether free from difficulty, but, in the facts and circumstances of this case, it seems to us that the appeal ought to be held maintainable and the preliminary objection ought to be overruled.
6. At the time of reference to arbitration, no question of instalment had been raised. It was not one of the matters, referred to the Arbitrators. Indeed, this was the plaintiff's objection to the Arbitrators' dealing with the defendants' prayer for instalments. It was, however, clearly open to the defendants, in view of Order 20, Rule 11, Civil P. C., to make a prayer to the Court for instalments even at the time of passing of the decree. Certainly, therefore, the defendants were entitled to make such prayer before the final hearing. That was, in fact, what was done in this case. It was, therefore, a matter which the Court had full jurisdiction to consider in spite of the earlier reference to arbitration, and it is the Court's decision on this matter which really forms the decree so far as this part of the case is concerned. It is as much a part of the decree in the present case as any other matter, decided by the decree. In some cases it has also been held that this can be considered to be a matter falling under Section 47, Civil P. C. Under either view, the appeal from the decree, so far as this question of installment is concerned, would be maintainable. We hold, therefore, that the appeal is competent and we overrule the plaintiff's preliminary objection.
7. As we have sufficiently indicated above, the Court, in the circumstances of the present case, had ample jurisdiction to consider the, defendants' prayer for installments. This the Court refused to do upon the view of law which appealed to it. That, as we have already said, is not the correct view and, accordingly, the defendants' prayer for installments should be considered on the merits. We do not think that, in the circumstances of the present case, it is necessary to remit this matter for consideration by the lower Court. We have before us certain materials and, after considering the submissions of the learned Advocates in the light of those materials, we think it fair that the total dyes under the decree, which now amount to Rs. 12,000/-, as we understand that a sum of Rs. 2,000/- has been paid by the defendants to the plaintiff in terms of an order, passed in the connected stay Rule, - should, in the present case, be paid in four instalments, one in April each year, beginning from April 1956, subject to this that the costs of the present appeal, which we have decided to award to the plaintiff respondent and which we assess at the conso'idated figure of ten gold-mohurs, should also be paid as part of the first instalment and should form part of the same.
8. We, accordingly, allow this appeal in part and direct that the balance of the decretal amount of Rs. 14,000/- less Rs. 2,000/- already paid, namely, Rs. 12,000/- and the costs (ten gold mohurs) equivalent to Rs. 170/- should be paid by the defendants to the plaintiff as follows:--
By the end of April 1956:.... .Rs. 3,170/-;
By the end of April 1957:.... .Rs. 3,000/-.
By the end of April 1958....Rs. 3,000/-;
By the end of April 1959:.... .Rs. 3,000/-.
In default of any one of these instalments, the plaintiff will be entitled to execute the decree for realisation of the entire outstanding balance due at that time.
9. We must also make it clear that it will be open to the defendants to apply before the lower Court for permission to sell some or all the attached properties for payment of the decretal dues and the Court will consider such application, if made to it, on the merits in accordance with law.
10. We would, however, direct that the entire sale proceeds on such sale should be brought to Court and, after paying off the plaintiff decree-holder's dues, outstanding at that time, the balance, if any, will only be paid to the defendants.
11. The appeal is allowed as above.
R.P. Mukherjee, J.
12. I agree.