JUDGMENT

Baguley, J - This is an appeal against an order passed by a Judge on the Original Side of this Court refusing to allow a decree to be paid by instalments. The decree was passed by the Court of Small Causes, Rangoon, and transferred to this Court for execution. While execution was proceeding an application was made for the decree to be made payable by instalments. The application was refused on the ground that this Court as the executing Court had no power to grant the prayer put forward. Two points were argued before us. The first was that not only could the Court which passed the decree make it payable by instalments under Order 20, Rule 11, but also that the executing Court could pass an order of like nature. This contention cannot be sustained. Beading Order 20, Rule 11(1) it will be seen that the Court referred to in that Sub-section must clearly be the Court which passed the decree, and as the same wording is used in Order 20, Rule 11, Sub-section 2, it would have seemed clear that a variation of a decree after it was passed could only be made by the Court which passed the decree. In addition to this the Full Bench ruling in S.A. Nathan v. S.B. Samson A.I.R. 1931 Rang. 252 shows clearly that an executing Court must take the decree sent to it for execution as it stands.

A Court to which such a decree has been transferred for execution must take the decree as it stands and is not entitled to question the validity of the decree....

and it would appear that if the Court must take the decree as it stands it would not be entitled to vary the decree by making it payable by instalments. The other point argued was that Order 21, Rule 9 says that where the Court to which the decree is sent for execution is a High Court, the decree should be executed by such Court in the same manner as if it had been passed by such Court in the exercise of its ordinary original: civil jurisdiction. This section was read together with para. 233 of the Rules which govern the Original Side of this Court. Para. 233, High Court Rules and Orders reads

After the passing of a decree for money the Court may, on the application of the judgment-debtor, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest...as it thinks fit.

2. It was argued that as this Court must execute the decree as though it had been passed by itself and as it would have power to make the decree passed by itself payable by instalments the consequence is that the decree transferred to it for execution by the Small Cause Court can be made payable by instalments by this Court when functioning as executing Court. This reason appears to us fallacious. When the Original Side of a High Court executes its own decree it is at the same time the Court which passed the decree and the Court which executes it; but in no way can the Original Side of this Court be said to be the Court which passed the decree which actually was passed by the Court of Small Causes. This appeal is, therefore summarily dismissed.

Mackney. J.

3. I agree.