Bhaurao vs Saraswatibai

T.C. Shrivastava, J.—This miscellaneous first appeal has been filed by the decree-holder against the order of the executing Court dated 10-8-1961, granting installments for payment of the decretal amount u/s 11 of the Moneylenders Act. The judgment-debtors have also filed a cross-objection that the executing Court should not have fixed the amount of installments at Rs. 2,500/- per annum but should have fixed only Rs. 2,000/-. This order governs the disposal of the cross-objection also.

The following facts are not disputed. A mortgage deed was executed by the judgment-debtors on 22-3-1930 for a sum of Rs. 12,000/- in favour of the decree-holder. The decree-holder filed a suit on its basis and obtained a decree for Rs. 24,000/- on 8-10-1947. The amount was reduced to Rs. 21,000/- under the provisions of the Madhya Pradesh Abolition of Proprietary Rights Act. A final decree in accordance with the provisions of the Abolition Act was passed in 1959 and the property was being sold in execution of the final decree when the judgment-debtors applied for installments u/s 11 of the Money lenders Act on 12-8-1960. From 22-3-1930 to 12-8-1960 the judgment-debtors had paid nothing towards the debt. While the application for installments was pending, they deposited a sum of Rs. 5,000/- towards part-payment and after the order for fixing installments was passed they paid a sum of Rs. 2,500/ towards the first installment.

Shri A.D. Deoras for the Appellant decree holder contends that the executing Court had no jurisdiction to grant installments u/s 11 of the Money-lenders Act. He has drawn my attention to the definition of 'loan' as contained in item (vii) of Section 2 of the Act. That definition is as follows:

"loan" means an actual advance made within twelve years from the date of the last transaction whether of money or in kind at interest and shall include any transaction, which the Court finds to be in substance a loan, but it shall not in-elude.

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He contends that the expression "within twelve years from the date of the last transaction" refers to the period after the mortgage deed and as there was no transaction after 1930, the transaction does not amount to a 'loan' at all. I find it difficult to accept this interpretation of the definition of 'loan'. According to the interpretation put, an anomalous position is created in as much as the transaction, which was a loan from 1930 onwards, ceases to be a loan after 1942. In my opinion, the expression refers to the period prior to the date of the last transaction, that is, it refers to the advances made during the period 1918 to 1930. I hold that Section 11 of the Money-lenders Act is applicable to the present case and the Court had power to grant installments notwithstanding the fact that the loan was advanced more than twelve years prior to the date of application for installments.

The next point which is urged by the learned Counsel is that Section 11 does not apply to a case where a final decree for sale has been passed, as it is not a decree for payment of money. Reliance was laced on the decisions in Pratapsingh v. Gopaldas 1942 N. L. J. 150 and Rajaram v. Rishabha Kumar ILR 1947 Nag. 470. Both these decisions were considered by a Full Bench of this Court in Rukhmanibai v. Mahendralal ILR 1949. Nag. 182 F. B. and it was authoritatively laid down that a final decree for sale under Order 34, Rule 5 of the CPC was nonetheless a decree for payment of money and the Court had power u/s 11 of the C. P. & Berar Moneylenders Act to grant installments. It is, therefore, no longer open to the decree-holder to contend that Section 11 does not apply to final decrees for sale. I may add that the words "a decree for payment of money" occur in Order 20, Rule 11 of the CPC Code: but no such limitation is to be found in Section 11 of the Money lenders Act which gives power to the Court to grant installments for payment of "the amount of any decree passed" against the judgment-debtor. The powers under that section would appear to be much wider than the powers under Order 20, Rule 11. In any case, the order granting installments u/s 11 is not without jurisdiction.

Shri S. C. Dube for the judgment-debtors stated that the decree-holder was precluded from challenging the order granting installments, as it was passed on a compromise application, dated 11-8-1960. This contention is not borne out by the application filed by the parties on that date. All that was said in that application was that if a sum of Rs. 5,000/- was paid, by the judgment-debtors within four months from that date, their application for installments would be considered and on failure to make the:necessary deposit, it would be dismissed. The agreement in that application did not relate to the details of the installments at all.

The last contention of Shri Deoras on behalf of the decree holder is that no installments should have been granted at all in this case, as no payment was made for thirty years by the judgment-debtors. This is undoubtedly one of the circumstances against the judgment debtors; but it is not enough to reject the application u/s 11, as installments have to be granted under that section "having regard to the circumstances of the judgment-debtor and the amount of the decree\. Moreover, the decree-holder is now precluded from raising such a plea, as he had agreed in the application, dated 11-8-1960 that the application for installments should be considered if the necessary deposit was made. The deposit had been made and the application had therefore to be considered on its merits.

The amount of installment fixed by the executing Court was not disputed on behalf of the decree-holder. In the cross objection the judgment-debtor have requested that the amount of installment be reduce to Rs. 2,000/-. In his application the judgment-debtor Jagannath had asked for installments of Rs. 1,000/- per year; but in his statement before the Court he said that he could pay Rs. 2,000/- per year at the most. He has not given details of the expenses for his family and income from the land, though he says that he has to spend Rs. 5,000/- per year as expenses of cultivation. The burden of proving his paying capacity is on the judgment-debtor. Having regard to the tendency of the judgment-deb tor to minimise his paying capacity, I do not think that the order of the executing Court fixing Rs. 2,500/- per year as the amount of installment needs interference.

At the end, it was suggested on behalf of the decree-holder that as the judgment-debtor had admitted that he had planted 600 orange trees on some of his lands, he will be in a position to pay much higher amount of installment when the trees yield crop by the end of 1963. I do not consider it proper at this stage to increase the amount of installment after 1963. It will be open to the decree-holder to make an application at the proper time for enhancing the amount of installment if the income of the judgment-debtor shows a substantial increase in future.

In the result, the appeal as well as the cross-objection are both dismissed. The parties shall bear their own costs as incurred.