Howes J:

This is an appeal from the order of the Magistrate, Ipoh, by which, on the application of the defendant, it was ordered that the judgment debt of $135 and costs should be paid by instalments of $5 a month as from 10 June 1934. The original claim was for $149.60 and costs, but the plaintiff consented to judgment for $135 and costs.

The order was made under s. 208 of the Civil Procedure Code which as amended reads:

Where and in so far as a decree is for the payment of money, the Court may at any time and for any sufficient reason, notwithstanding anything contained in the contract (if any) under which the money is payable, order that payment of the amount decreed shall be postponed or made by instalments on such terms as to the payment of interest, the attaching of the property of the judgmentdebtor, or the taking of security from him, or otherwise, as the Court thinks fit. Provided that no such order shall be made without due notice to the decree holder.

The grounds of appeal shortly are:

1. The Magistrate, in making the order, did not exercise in a proper and judicial manner the discretion conferred on him by s. 208 (supra) in that:

(a) No sufficient reason was shown by the defendant why he should be permitted to pay the judgment debt by instalments.

(b) The rights of the plaintiff under his judgment were disregarded.

(c) The order for instalments should not have been made in view of the fact that the defendant had deposited a Grant for land, as security for the debt.

(d) That the consideration of s. 265 of the Code by the Magistrate (in his grounds of judgment) was irrelevant on the hearing of an application under s. 208.

2. The Magistrate ought not to have made an order for payment by instalments which, in order to pay off the debt, would continue for over 29 months, without providing that in default of payment of any instalment, the plaintiff be at liberty to proceed to execution.

In his grounds of judgment, the Magistrate seems to have based his order solely on the fact that because the defendant is an agriculturist, under s. 265 (i) (c) of the Civil Procedure Code, the land immediately appurtenant to his house would not be liable to attachment. The order was not based on the ground of the poverty of the defendant, although in the grounds of judgment it is said "he owns no other property, movable or immovable."

The fact that the defendant is an agriculturist is a factor which the Magistrate is entitled to take into consideration, if the plaintiff had applied for execution by attachment; but upon a defendant's application for payment of the judgment debt by instalments under s. 208, any reference to s. 265 appears to be irrelevant. Since the defendant had deposited his title as security for the original loan, the order to pay by instalments is a clog on the plaintiff's right to exercise his lien and thereby deprives him of his right to enforce his judgment against the land, so long as the instalments are paid.

Reverting to s. 208, the discretion given to the Court by this section to allow payment by instalments is a judicial discretion, and cannot be arbitrarily exercised. As stated by Burton J, in Muthupalaniappa Chettiar v. Mohamed Yusof bin Haji Ahmad Ee Tin, [1931-1932] FMSLR 231, at p. 232:

The Magistrate purported to act under s. 208 of the Civil Procedure Code, and of course he has a perfect right in a proper case to make an order for instalments under that section, and to vary it or rescind it when made. But the Magistrate must act according to correct principles ... Section 208 (i) of the Civil Procedure Code contains the words" for any sufficient reason "and the Magistrate must bear in mind that the creditor has equal claim to consideration with the debtor. I do not think poverty of itself could be regarded as a sufficient reason (see Binda v. Madho, ILR 2 All P 129) for that would suffice in most suit, to justify an order for instalments. The order for instalments is a definite der