1. This petition filed under Article 227 of the Constitution is directed against the order dated 17.10.2012, whereby the petitioner/judgment debtor’s application preferred under section 151 CPC (Annexure P-3) is decided by the Court below. This is admitted between the parties that a judgment and decree was passed on 15.10.2010 (Annexure P-2). Since it was not implemented, the decree holder filed execution proceedings in the year 2012. In the execution proceedings, the present petitioners filed application under section 151 CPC (Annexure P-3) by praying that small installments be fixed so that the decreed amount can be satisfied by the judgment debtors. On the said application the Court below passed the order dated 17.10.2012 and directed the judgment debtors to pay Rs.50,000/- per month upto four months and thereafter pay the remaining Rs.40,000/- in the last month. The petitioners have filed this petition feeling aggrieved by the said order.

2. Shri S.N.Seth, learned counsel for the petitioners submits that all the petitioners are labourers who are not in a position to even pay Rs.50,000/- per month. He relied on 1982 MPWN 501 (Mayaram v. Mst. Khudavaliwari). Shri Seth submits that as per Order 20 rule 11 CPC, the Court below was required to conduct an enquiry which has not been conducted, hence the order is bad in law.

3. Prayer is opposed by Shri N.K.Gupta, learned counsel for the respondent. He submits that the the Court in its discretion has fixed the installments. The petitioner has not disclosed about the occupation in their application Annexure P-3. Not a single penny is paid after the judgment. The application is not bonafide, yet the Court below in its discretion has fixed the installment. Hence, no interference is required.

4. I have heard the learned counsel for the parties and perused the record.

5. No doubt Order 20 rule 11 enables the Court to fix instalment in such terms as it things fit. The judgment in Mayaram (supra) is not reported in toto. In absence of examining the facts of that matter it will not be proper to rely on the said judgment. However, even in the said judgment the Court opined that “the learned trial Court should have decided the application after making due enquiry into the facts on which the judgment debtor claimed payment by instalments”. The key words are “into the facts on which the judgment debtor claimed payment”. If application of judgment debtor in the present case is examined, it will be clear that he has merely stated that he is unable to pay the decretal amount in one instalment. The reason of this inability is not disclosed. In other words, petitioners have not disclosed as to why they are not able to satisfy the decree. Thus, the basic facts on which judgment debtor claimed payment by instalment are not pleaded. Enquiry, in my opinion, is required when the judgment debtor shows his inability by impleading necessary facts and those facts are required to be examined. In absence of showing the same, mechanically no enquiry is required. In other words, the enquiry is required only when one party narrates some necessary facts and other party disputes it. When necessary factual foundation is not pleaded, no enquiry needs to be ordered mechanically.

6. A Division Bench of Calcutta High Court in AIR (36) 1949 Calcutta 427 (Jagdish Chandra Chakravarti and others v. Brojendra Mohan Maitra and others) held as under :-

“We think desirable to state for the guidance of lower Courts generally that where instalments are prayed for by the debtors, the Court should see that the facts relating to means and circumstances of the debtor as also of the creditor are brought in before the Court. If a debtor simply says that he would not be able to pay money if a certain number of instalments is not granted to him that is not sufficient. Strictly speaking, it would be his own opinion and would not be admissible in evidence”.

7. In 1976 JLJ 412 (Parmanand Jain v. Babulal Brijendra Kumar (Firm) and