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1991 Supreme(AP) 22
Andhra Pradesh High Court
Judges : I.P.RAO
T.Vasanthamma - Appellant
Versus
Pattan Usman Saheb - Respondent
Decided On : 01-31-91
The executing court does not have the jurisdiction to direct payment of the decretal amount in instalments in an execution petition filed for arrest of the judgment debtor.
Headnote:
EXECUTION OF DECREE - PAYMENT OF DECRETAL AMOUNT IN INSTALMENTS - JURISDICTION OF EXECUTING COURT - ORDER 20, RULE 11(2) OF THE CODE OF CIVIL PROCEDURE - LIMITATION ACT, ARTICLE 126 - INTERPRETATION AND APPLICATION.
Fact of the Case:
The decree-holder obtained a decree for Rs. 23,000/- against the judgment debtor and filed an execution petition for arrest of the judgment debtor alleging that he was evading payment despite earning a salary of Rs. 1,500/- per month. The judgment debtor claimed that the decree-holder had agreed to receive the decree amount in instalments of Rs. 100/- per month from November 1989 and that he had paid instalments till February 1990. He also claimed that he had a large family to support and could not pay the decretal amount in a lump sum.
Finding of the Court:
The court held that the executing court did not have the jurisdiction to direct payment of the decretal amount in instalments in an execution petition filed for arrest of the judgment debtor. The court observed that such a power would defeat the object of the period of limitation of 30 days prescribed by Article 126 of the Limitation Act for filing an application for payment of decretal amount by instalments under Order 20 Rule 11 (2) of the Code of Civil Procedure.
Issues: Whether the executing court has the jurisdiction to direct payment of the decretal amount in instalments in an execution petition filed for arrest of the judgment debtor.
Ratio Decidendi: The court relied on the decision of the Supreme Court in Jolly George Varghese vs. Bank of Cochin, which held that the executing court does not have the power to direct payment of the decretal amount by instalments. The court also observed that the judgment debtor's plea that the decree-holder had agreed to receive the decree amount in instalments was false and that he had mala fide intentions to evade payment of the decretal amount.
Final Decision: The court allowed the civil revision petition and set aside the order of the learned District Munsif directing the judgment debtor to discharge the decree debt in instalments of Rs. 500/- per month. The court also postponed the issuance of arrest warrant by three months from the date of the order, subject to the condition that the judgment debtor pays the entire decretal amount on or before 30th April, 1991.
( 1 ) THE short question that falls for consideration in this revision petition preferred by the decree-holder is whether the executing court has got jurisdiction to direct payment of the decretal amount in instalments in an execution petition filed for arrest of the judgment-debtor.
( 2 ) THE petitioner herein obtained a decree for Rs. 23,000/- against the respondent-judgment debtor and filed E. P. No. 79 of 1990 for arrest of the judgment debtor alleging that as an employee in A. P. S. R. T. C. he is drawing a salary of Rs. 1,500/- per month but is evading to pay the amount. The judgment debtor came forward with an untenable defence that the decree-holder has accepted to receive the decree amount in instalments of rs. 100/-per month from November, 1989 ; that he has accordingly paid the instalments of Rs. 100/-per month till February, 1990 and that thereafter, the decree-holder refused to receive the instalments. He has also stated that he has to maintain a big family of seven members consisting of all daughters ; that he is the only bread winner of the family and that as such he has no means to pay the decretal amount in a lumpsum.
( 3 ) THE decree-holder repudiated the defence plea by deposing that the judgment debtor, as a mechanic, is getting a salary of Rs. 2,500/- per month ; that his wife is residing in Kuwait ; that she used to send rs. 3000/- per month to her husband (che judgment-debtor) and that the judgment debtor s son is working with an Eye Surgeon and is earning rs. 500/- per month. The judgment debtor in his cross-examination admitted that he has three daughters and two sons and that one son who is working in Pagadala Opticals is getting a salary of Rs. 600/- per month, the judgment debtor did not deny the statement of the decree-holder that the judgment debtor s wife has gone to Kuwait. During the course of arguments, the judgment debtor s counsel contended that Muslims can marry more than one wife ; that the wife who is mentioned in the counter is the second wife and that the first wife of the judgment debtor left for kuwait. Even assuming that, to be correct, that statement of the decree-holder that the wife of the judgment debtor was sending money from Kuwait can be accepted because it is only for earning huge salaries that persons would normally go from Jndia to other countries like Kuwait, etc.
( 4 ) MY learned brother Lakshtmana Rao, J. , held in J. Krishnareddy vs. B. Ramagopalaiah that the executing court has no power to direct payment of decretal amount by instalments. That is what exactly the learned District Munsif has done in this case. As observed by the learned judge in J. Krishnareddy s case (case 1 supra),if the executing court would have got such a power, the object of the period of limitation of 30 days prescribed by Article 126 of the Limitation Act for filing an application for payment of decretal amount by instalments under Order 20 Rule 11 (2) of the Code of Civil Procedure would be defeated and it would be open for every judgment-debtor to move the executing court at any stage of the execution proceedings to pay the decretal amount by instalments, which would be contrary to the provisions of Order 20, Rule 11 of the Code of civil Procedure.
( 5 ) THE learned District Munsif has relied upon the decision of karnataka High Court in K. Karumakar Shetty vs. Syndicate Bank, Manipalp (2 ). In that case, the decree-holder is a Bank, which is a statutory body. The learned Judge observed that the Bank being a statutory body should act with great responsibility in realising its amounts and sending a person to prlson is not a fair means of realising the decretal amount while the judgment debtor has a share in the joint family and there is a mode of execution available to the Bank. It is under those circumstances, that the learned Judge held that arrest and detention of the judgment debtor was not called for. The decision of the Supreme Court in Jolly George Varghese vs.
