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Manorama Debi Vs. Wajadi Acan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal559,157Ind.Cas.1038
AppellantManorama Debi
RespondentWajadi Acan and ors.
Cases ReferredBalgobindram Bhakat v. Chhedilal Saha
Excerpt:
- .....lesser than those claimed. the decrees will have to be modified accordingly and the plaintiff's claim decree in full. the defendants in these cases, as i have stated, admitted the claims but prayed for instalments spreading over a very long time as for instance, in civil revision case no. 989, which corresponds to suit no. 401 the claim was laid at rs. 40 but the decree given was for rs. 36 and this amount was directed to be paid in instalments of rs. 3 in each quarter, that is to say, rs. 3 in ashar, rs. 3 in aswin, rs. 3 in pous and rs. 3 in chait. in making decrees for instalment the lower court should not only look into circumstances and means of the defendants but should also look into the position of the plaintiff. if an instalments of very small amounts is granted it may be.....
Judgment:
ORDER

R.C. Mitter, J.

1. In these cases the plaintiff instituted suits for recovery of money due on bonds. Defendants did not dispute the amount of claim. Still the Munsif has granted decrees in part. It is very difficult to follow how in these circumstances when there was no dispute as to the amount due the Munsif could have decreed the plaintiff's suit for amounts lesser than those claimed. The decrees will have to be modified accordingly and the plaintiff's claim decree in full. The defendants in these cases, as I have stated, admitted the claims but prayed for instalments spreading over a very long time as for instance, in Civil Revision Case No. 989, which corresponds to Suit No. 401 the claim was laid at Rs. 40 but the decree given was for Rs. 36 and this amount was directed to be paid in instalments of Rs. 3 in each quarter, that is to say, Rs. 3 in Ashar, Rs. 3 in Aswin, Rs. 3 in Pous and Rs. 3 in Chait. In making decrees for instalment the lower Court should not only look into circumstances and means of the defendants but should also look into the position of the plaintiff. If an instalments of very small amounts is granted it may be that the decree-holder would have to spend a good portion thereof for the purpose of withdrawing the instalments if deposited in Court. Having regard to all the circumstances of the cases, I modify also the order for instalment. The defendants are to pay the balance that may be found duo on the basis that the plaintiff's claim is to be decreed in full in two equal instalments, one to be paid by the end of Chait 1341 and the other by the end of the month of Aswin 1342. In default of the payment of any one instalment the whole amount will become due with interest at 6 per cent per annum. There will no order for costs. Suit No. 401 is decreed for Rs. 40 with costs Rs. 5-8-9 total Rs. 45-8-9. Suit No. 351 is decreed for Rs. 30 with costs Rs. 4-8-9 total Rs. 34-8-9 and Suit No. 366 is decreed for Rs. 55 with costs Rs. 7-8-9 total Rg. 62-8-9.

Civil Revision Case No. 1020.

2. The only question in this case is the question of instalment. The order for instalments which I have made in the rules just now disposed of will also govern this rule, that is to say, in lieu of instalments passed by the Court below the defendants are directed to pay the balance of the decretal amount in two equal instalments, one to be paid by the end of Chait 1341 and the other by the end of Aswin 1342. In default of payment of the first instalment, the whole amount will be recoverable with interest at 6 per cent per annum.

Civil Revision Case No. 1017.

3. In this case the plaintiff instituted a suit to recover a sum of Rs. 200 from the defendant on a bond executed as far back as 1925. Small payments were made and at the date of the institution of the suit on a calculation of the interest in terms of the bond a sum of Rs. 404-4-0 was due to the plaintiff. The plaintiff remitted Rs. 204-4-0 and sued for Rs. 200, the balance. The defendant did not contest the claim, but he prayed for instalments. In his deposition he says thus: 'I want kist for 12 or 14 years in Aswin. I have a jama of Rs. 10-6-0.' A preposterous prayer was made by the defendant when he wanted to repay the money borrowed as far back as 1925 in respect of which the creditor had given up a large amount by way of remission in 12 or 14 years. The learned Munsif ought to have come to the conclusion from the absurdity of the claim that the prayer for instalment was really not bona fide but only intended to harass the creditor. But however the learned Munsif simply records his order in this form: 'Decreed on admission with costs.' Then the decretal amount with costs is set out. This amounts to the sum of Rs. 230-5-6. Then the instalments are given in these words: 'Rs. 25 in each Aswin, Rs. 15 in each Chait 1341 to 1345 B.S., Rs. 30-5-6 in Aswin 1346,' that is to say, on a bond executed in the year 1332 on which a suit was instituted in the year 1340, the decree is to be satisfied by instalments spreading over upto the year 1346. Even a Small Cause Court in granting instalments is required under the provisions of Order 20, Rule 11 to state its reasons for granting the prayer. Simply because instalment is prayed for and the claim is not contested that does not entitle a debtor to get an instalment decree as a matter of course. In making orders for instalments not only the condition of the debtor and his ability to pay must be considered but also all other circumstances must be taken into consideration, namely, the date when the loan was incurred, the amount of the loan, the amount of the instalments ordered and the number of years in the course of which it is to be satisfied. An instalment decree spreading the instalments over a large number of years is a thing oppressive to the creditor and the Court should, in passing instalment decrees, be careful to guard also the interest of the creditor. Too much pity on a debtor is not the consideration which is to prevail over all other claims. Inasmuch as the Small Cause Court Judge has given no reasons for allowing instalments, I have the power to interfere with the decree and I do interfere with the same.

4. In the observations that I have made I am supported by the principles formulated in the judgment of Mookerji, J., and Teunon, J., in Balgobindram Bhakat v. Chhedilal Saha (1910) 11 CLJ 431. Having considered all the circumstances of the case, I think in the interest of justice in substitution of the instalments ordered by the Court below the following order should be passed and I pass it accordingly, namely the defendant must pay the balance of the decretal amount to the plaintiff in two equal instalments, the first instalment to be paid within the month of Sravan 1342 and the second instalment to be paid within the month of Aghrahan 1342. In default of the first instalment, the entire unpaid decretal amount will fall due with interest at 6 per cent. In the circumstances of the case, I do not grant any hearing fee to the petitioner. But he will have other cost3 of this Rule.


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