1982 Supreme(MP) 512

Faizan Uddin, J.
Mayaram v. Mst. Khudavaliwari.
C. R. No. 1016 of 1980 (G); Decided on 29-9-1982.

Headnote:(1) Civil P. C, 1908 -- O.20, R. 11 (2) -- right under -- is of substantive nature -- application for instalments under -- can be made independently -- pendency of execution proceedings not necessary.

        (2) Civil P. C. (Amendment) Act, 1976 -- S. 97 -- Civil P. C., 1908 -- Ss. 2 (2),47 and 175 -- O. 20, R. 11 (2) -- application for instalment filed after amending Act -- provisions of amendment Act would apply -- order on such application is revisable and not appealable.

        (3) Civil P. C., 1908 -- O. 20, R. 11 (2) -- order of instalment under should be passed after due inquiry.

        The Civil Revision No. 1016/80 arises out of execution proceedings in respect of a money decree against the judgment-debtor non-applicant amounting to about Rs. 4,633.50 P. by the impugned order the learned Executing Court allowed the judgment-debtor non-applicants application for grant of instalments directing that the judgment-debtors shall pay the decretal amount by instalment of Rs. 200/- per annum. Similarly in Civil Revision No. 1018/80 arising out of the execution proceedings of a money decree to the tune of Rs. 1,890-56 P. in which the judgment· debtors non-applicants application for payment of decretal amount has been allowed directing to pay the decretal amount at the rate of Rs. 200/- per annum. These two revisions, therefore, have been directed by the decree-holder applicant against the said orders granting instalments.

        At the very outset, the learned counsel for the non-applicants raised a preliminary objection that the decree was passed in the year 1970 and the execution thereof was tiled in July 1972 whereas the Amending Act of the Code of Civil Procedure came into force in 1976 and, therefore, the impugned orders were not revisable, but appealable under section 47 of the Code as right to appeal was a vested right in the proceedings pending before the Amending Act of 1976 came into force. Reliance was placed on Chuluram v. Bhagatram (1979 JLJ 730); Slid Krishan v. Moorti Shri Gopalji Mahalj [1981 (1) MPWN Note 251]; and, Mohammad Ramzan v. Mohammad Baba (AIR 1978 J and K 27).

        Held : The provisions of rule 11 of Order 20 of the Code relate to the powers of the Court to direct payment of money decree by instalment. Subd`rule (I) of rule 11 of Order 20 relates to the direction of the Court in the decree itself either for postponement of payment or for its payment by instalments on sufficient reasons. Whereas, under subd`rule (2) of rule 11 of Order 20, an amendment in Madhya Pradesh, the Court after the decree is passed, may on the application of judgment-debtor, order the postponement of payment of decretal amount or direct payment by instalment without the consent of the decree-holder, on such terms as are stated in subd`rule (2) of rule 11. It may be noted that in the present case the order for payment of decretal amount was not incorporated in the decree itself but it was separately passed on an application by judgment-debtor under O. 20 rule 11 (2) of the Code. It may also be noted that the order allowing payment of decretal amount by instalments is not appealable under Order 43, rule 1 of the Code.

        In the present case, the application for payment of decretal amount by instalments was made on 9-11-1979 under Order 20, rule 11 (2) of the Code. According to the provisions of subd`rule (2) such an application could be made independently and it is not necessary that execution proceedings should be pending. The right to make an application is an independent and substantive right of a judgment-debtor. Admittedly, the application for grant of instalment was not pending at the time when the Amending Act of 1976 came into force, but it was filed much after its enforcement: and, therefore, the order passed thereon could not no appealable under section 47 of the Code, as now after the amending Act, determination of any question under section 47 does not amount to a decree within the meaning of S. 2 (2) of the Code. The facts of the present case are distinguishable from the facts of Chuluraons case (supra), in which the execution which was filed before the Amending Act came into force, was itself dismissed after the Amending Act came into force, and. therefore, the decree-holder in that case had a vested right of appeal which was then available at the time of filing of the execution.

        From the case of Shri Kdshan (supra), it is not clear as to when the objections were raised by the judgment-debtor under section 47 of the code and when they were decided by the Executing Court, and, therefore, SlIri Krishans case (supra) is not of any assistance.

        Similarly, Mohammad Ramzans case (supra) is also not applicable to the facts of the present case as it relates to the question of an appeal under the Arbitration Act on refusal of instalment under Order 20, rule 11 of the Code. In these circumstances, I am of the opinion that the impugned order is not appealable and the revision is competent against the same.

        The learned counsel for the applicant contended that the impugned order is bad as no injury was made by the trial Court while allowing non-applicants application for payment of the decretal amount by instalments. I find that there is substance in this submission. The learned trial Court should have decided the application after making due inquiry into the facts on which the judgment-debtor claimed payment by instalments after giving an opportunity to the decree-holder applicant to meet the ground on which instalment, were claimed. 1979 JLJ 730, 1981 (I) MPWN 251 and AIR 1978 J and K 27 distinguished. Revisions allowed.