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IMPERIAL BANK OF INDIA LTD. v. SILVA et al.
NLR34V346
1933 Present :
Akbar J. and de Silva A.J.
IMPERIAL BANK OF INDIA, LTD. v. SILVA et al.
201-D. D. (Inty.) Colombo, 48,903
Mortgage decree-Order for
payment by instalments-Civil Procedure Code, s. 194-Ordinance No. 22 of 1927, s.
12.
In a mortgage action the Court has power to order the payment, by instalments,
of the money due under the decree.
APPEAL
from an order of the District Judge of
Colombo.
L. A. Rajapakse, for defendants-appellants.
N. E. Weerasooria, for plaintiff-respondent.
May 31, 1933. De SILVA A.J.-
The plaintiff in this case sued the defendants for the recovery of the balance
sum of Rs. 72,182.94 due on a mortgage bond excuted on; February 18, 1931, for a
sum of Rs. 79,431.53. It appears from the evidence of the second defendant,
which has not. been challenged, that: the loan was originally given without
security and that later, when called upon, the defendants furnished the security
now sued upon, and also handed to the plaintiff a number of promissory notes in
their favour. They have also assigned a. mortgage bond. It appears both from the
evidence and from the findings of the learned Judge that the defendants have
acted entirely honesty and made every endeavour to pay off the claim of the
plaintiff as expeditiously as possible. They asked for time to pay the amounts
sued upon, the learned Judge has given them time and .made order that for a
period of one year from October 15, 1932, the defendants should pay the sum of
Rs. 1,000 a month. During the second year that they should pay the sum of Rs.
2,000 per month and during the third year they should pay Rs. 3,000 a month. He
was of opinion that the security which the bank held was adequate, and I have no
reason to doubt the correctness of this view.
The defendants on this appeal ask
that the order be altered in their favour and that a reduction be made in the
amounts which they have been ordered to pay. They urge that although they have
endeavoured, and still continue to endeavour, to pay off the claim of the
plaintiffs as quickly as possible, the sums of Rs. 2,000 and Rs. 3,000 a month
which they have been ordered to pay are more than they can meet and that the
effect of the order would in all probability be to place the lands mortgaged
upon the market for sale in execution.
The plaintiffs have filed a cross appeal on which they urge that they are
entitled to immediate execution in law and that the order of the learned
District Judge is bad. Two points arise for decision in this case, the first a
point of law whether it is competent for a Court to enter an order for payment
by instalments on an action on a mortgage bond and the second whether, if such a
power exists, the order under consideration is proper in the circumstances of
this case.
It has been assumed in certain decisions that a Court has no power to enter a
decree for instalments on an action on a mortgage bond, but counsel for the
plaintiff has not been able to point out, and I have been unable to discover,
any case in which the question has been considered. Section 194 of Chapter XX,
of the Civil Procedure Code says " In all decrees for the payment of money,
except money due on mortgage of movable or immovable property, the Court may
order that the amount decreed to be due shall be paid by instalments with or
without interest, and the Court may in its discretion impose such terms as it
may think fit as to giving security for the payments so to be made". Different
sections of. Chapter XX, deal with different kinds of decrees and give
directions as to the nature of the provision they are to make. Section 194
relates to all decrees for the payment of money, except for the payment of money
due on mortgages. Section 201, which has since been repealed, dealt with decrees
for the payment of money due on mortgages. The words " except money due on
mortgage" in section 194 were intended in my opi
