Binjiraj Marwari and Others vs Mathuri Rai and Others

Agarwala, J.—Civil Revision No. 584 of 1940 is settled by agreement. The guardians of the minor petitioners and opposite party are permitted to enter into the compromise. The terms are that the amount due to the decree-holder for the costs of the suit in the Calcutta High Court shall be paid to the petitioners within six months from today, and on such payment being made this petition will stand dismissed. If the payment be not made within that time the petition will be allowed with costs. Hearing fee one gold mohur.

Civil Revision No. 677 of 1940.-- The petitioner obtained a decree in the Calcutta High Court for Rs. 4280-13-0 on the basis of a handnote. That decree waa transferred to, Bhagalpur for execution. On 16th May, the judgment-debtors paid Rs. 1300 to the decree-holder and both parties then presented a petition to the Court stating that they had agreed that the balance should be paid by Kartik 1346.

Accordingly the execution petition was dismissed on part satisfaction. As the balance was not paid on the date agreed upon the decree-holder again applied for execution. The opposite party then applied for instalments u/s 11, Money-Lenders Act. The Court below has allowed the instalments. Now Section 11, Bihar Money-Lenders Act, which empowers a Court to direct the payment of the decree by instalments refers to Section 12 of the Act requiring the Court to take into consideration the circumstances of the judgment-debtor the amount of the decree and the capacity of the judgment-debtor to pay the instalments on the due dates. When the judgment-debtor has himself by voluntary agreement fixed the date and the amount which he can pay, the Court does not exercise a wise discretion in interfering with the arrangements made by the parties.

In this case, as I have already stated, the judgment-debtor agreed on 16th May in the petition which he joined in filing in the Court at Bhagalpur that the balance should be paid in Kartik 1346. That is the best evidence possible that the judgment-debtor considered himself that financially he was in a position to pay on that date and that there was nothing in his circumstances which justified any delay beyond that date.

In my opinion, therefore, the Court was wrong in the circumstances of the case in exercising its discretion to order that the decree be paid in nine equal instalments.

The application is therefore allowed with costs: hearing fee one gold mohur.